Gujarat High Court
Chetan Champakkumar Patel vs State Of Gujarat on 27 April, 2023
Bench: Gita Gopi
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 28312 of 2017
With
R/SPECIAL CRIMINAL APPLICATION NO. 679 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 6429 of 2017
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2018
In
R/SPECIAL CRIMINAL APPLICATION NO. 6429 of 2017
With
R/SPECIAL CRIMINAL APPLICATION NO. 6477 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 6396 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 21418 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 21767 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 25082 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 25279 of 2017
Page 1 of 108
Downloaded on : Sat Apr 29 20:45:41 IST 2023
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
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 ?
==========================================================
CHETAN CHAMPAKKUMAR PATEL
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance in CRMA No.28312 of 2017:
MR YATIN N.OZA, SENIOR COUNSEL WITH MR APURVA R
KAPADIA(5012) for the Applicant(s) No. 1
MR B.S. RAJU ADVOCATE WITH MR AKASH A SINGH(8713) for the
Respondent(s) No. 2
MR PRANAV TRIVEDI ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
Appearance in SCRA No.679 of 2018:
MR AMIT V THAKKAR for the Applicant(s) No. 1-3
NOTICE SERVED BY DS for the Applicant(s) No.2-3, 5
MR PRANAV TRIVEDI ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
MR SAMTA R.GODIWALA for Respondent(s) No.4
Appearance in SCRA No.6429 of 2017:
MR YATIN N.OZA, SENIOR COUNSEL WITH MR APURVA R
KAPADIA(5012) for the Applicant(s) No. 1
MR PRANAV TRIVEDI ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE SERVED BY DS for Respondent(s) No.2-3
MR B.S. RAJU ADVOCATE WITH MR AKASH A SINGH(8713) for the
Respondent(s) No.4
Page 2 of 108
Downloaded on : Sat Apr 29 20:45:41 IST 2023
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Appearance in CRMA NO.1 OF 2018 IN SCRA No.6429 of 2017:
MR YATIN N.OZA, SENIOR COUNSEL WITH MR APURVA R
KAPADIA(5012) for the Applicant(s) No. 1
MR PRANAV TRIVEDI ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 2
MR SAMTA R GODIWALA for the Respondent(s) No.3
Appearance in SCRA No.6477 of 2017:
MR NIRAD DBUCH for the Applicant(s) No. 1
MR PRANAV TRIVEDI ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
MR B.S. RAJU ADVOCATE WITH MR AKASH A SINGH(8713) for the
Respondent(s) No.2
Appearance in CRMA No.6396 of 2017:
MR ASHISH B DESAI for the Applicant(s) No. 1
MR PRANAV TRIVEDI ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
MR N M KAPADIA for the Respondent(s) No.2
Appearance in CRMA No.21418 of 2017:
MR NIRAD D BUCH) for the Applicant(s) No. 1
MR PRANAV TRIVEDI ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
MR B.S. RAJU ADVOCATE WITH MR AKASH A SINGH(8713) for the
Respondent(s) No.2
Appearance in CRMA No.21767 of 2017:
MR YATIN N.OZA, SENIOR COUNSEL WITH MR APURVA R
KAPADIA(5012) for the Applicant(s) No. 1-3
MR PRANAV TRIVEDI ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
MR B.S. RAJU ADVOCATE WITH MR AKASH A SINGH(8713) for the
Respondent(s) No.2
Appearance in CRMA No.25082 of 2017:
MR PRAVIN GONDALIYA for the Applicant(s) No. 1
MR PRANAV TRIVEDI ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
MR B.S. RAJU ADVOCATE WITH MR AKASH A SINGH(8713) for the
Respondent(s) No.4
Appearance in CRMA No.25279 of 2017:
MR HARDIK A. DAVE for the Applicant(s) No. 1-3
MR PRANAV TRIVEDI ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
MR B.S. RAJU ADVOCATE WITH MR AKASH A SINGH(8713) for the
Page 3 of 108
Downloaded on : Sat Apr 29 20:45:41 IST 2023
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Respondent(s) No.2
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/04/2023
COMMON ORAL JUDGMENT
1. Common issue has arisen in all the captioned
matters, by consent of the parties, the matters were
heard finally and are being disposed of by this common
judgment.
2. Petitions being Criminal Misc. Application
No.28312 of 2017, Special Criminal Application Nos.6429
of 2017, 6477 of 2017, Criminal Misc. Application
Nos.21418 of 2017, 21767 of 2017, 25082 of 2017 and
25279 of 2017, have been filed under under section 482
of the Code of Criminal Procedure for quashing and
setting aside the FIR bearing C.R. No.I-215/2017
registered before the Umra Police Station, Surat City
under sections 406, 420, 465, 467, 468, 471, 120B and
114 of IPC
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
2.1 Whereas Criminal Misc. Application No.6396 of
2017 is filed for quashing of FIR bearing C.R. No.I-
45/2016 registered with Umra Police Station, Surat under
sections 447, 114 and 188 of IPC.
2.2 While Special Criminal Application No.679 of
2018 is for quashing and setting aside the impugned
order dated 08.01.2018 passed below Exhibit-34 in
Criminal Misc. Application No.3360 of 2015 by the 2 nd
Additional Sessions Judge, Surat, and, for direction to the
police authorities, being respondent nos.2 and 3, for
handing over possession of the subject land to the
petitioners.
3. As per the complainant, to the facts noted in
the complaint, Revenue Survey No.209 of village-Vesu
with new Survey No.111/3 land being old tenure, area
admeasuring 9814 sq. mtrs., the original owner is Homi
Janhagirji Vesuna, and as per the complainant the said
land was in possession and occupation of the original
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
owner, since the complainant also holds a land in the
outskirt of village Vesu and conducts agricultural
activities; he came in contact with Homi Jahangirji
Vesuna, who informed him in the year 1997, that he
wanted to sell his land, the complainant, thus expressed
his willingness, therefore, it is stated that complainant
purchased the said land in the year 1997, in the name of
his wife Shardaben and son Anup, and a registered
Satakhat without possession was executed on 22.10.1997
by the owner of the land, Homi Jahangirji Vesuna.
3.1 The applicants while praying for the quashing
of FIR contended that the father of accused no.5 of F.I.R.
being C.R. No.I-215/2017, Darbsha @ Dali Faramji Patel
was in possession of the subject land as a tenant prior to
1955, and after his demise, accused no.5 - Minu Darbsha
and his brother accused nos.4 - Firoz Darabsha @ Dali
Patel and accused no.6 - Yasmin wd/o. Hosang Darabsha
@ Dali Patel were cultivating and in possession of the
land. The applicants contends that the original owner -
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Homi Janhagirji Vesuna and father of accused nos.4 & 5,
being of the same community, had cordial relations and
had mutual trust on each other and therefore original
owner agreed to sell the subject land to the father of
accused nos.4 & 5, for which an agreement was executed
on 08.03.1986., which acknowledges the possession of
Darbsha @ Dali Patel. After the demise of father of
accused nos.4 & 5 on 13.03.1997, the dispute arose
between the parties and accused no.5 and his brothers
initiated tenancy proceedings in the year 2000, which
reached till Gujarat Revenue Tribunal, and, the Gujarat
Revenue Tribunal by order dated 30.09.2005 in Revision
Application No.TEN/BS/42/2002 remanded the same to
the Mamlatdar for deciding the matter afresh, and, till
date the said issue is pending before the Mamlatdar,
Krushi Panch, Ganot, Choryasi.
3.2 It is alleged in the F.I.R. C.R. No.I-215/2017 by
the complainant - Surendrakumar Ishwarlal Tamkhidas
that, he had purchased the land bearing Revenue Survey
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
No.209, new revenue Survey No.111/3 of village-Vesu,
Taluka-City, Surat, admeasuring 9814 sq. mtrs. from the
original land owner - Homi Jahangirji Vesuna for the sale
consideration of Rs.2,15,000/-, and account payee
cheque, being Cheque Nos.0579361 and 0579362 for
Rs.1,00,000/- was paid of Surat District Co-operative
Bank Ltd., and rest of the amount, as stated by the
complainant that, he has paid in cash, and to that effect,
complainant was having registered 'Satakhat' -
agreement of sale without possession dated 22.10.1997 in
his favour, executed by Homi Jahangirji Vesuna, Roshan
Homi Vesuna and Feniben D/o. Jahangirji Kavashji before
sub-registrar office at Sr. No.15103/1997. Further, and
on the very same day a receipt was executed on Rs.20/-
stamp, handing over the possession of the land.
3.3 It is also stated in the FIR that along with the
said Satakhat, Irrevocable Power of Attorney was given to
the complainant, and on the basis of the Power of
Attorney, the complainant before the Sub-Registrar, Surat
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
City-1 at Serial No.2230/2002 executed registered sale
deed in favour of his wife and son on 30.03.2002, who
became the owner in possession of land. It is also stated
that in the revenue proceedings, the complainant
succeeded, upto the Special Secretary and the Satakhat
which is stated to be executed by the original land owner
in favour of father of accused no.5 in the year 1986 is
fake, the signature of the land owner is forged, which is
supported by handwriting expert opinion of Mr.
Upadhyaya on 19.09.2012. It is further alleged in the
complaint, that though accused nos.8 to 10, were not
entitled to sell the land, they had executed one Power of
Attorney, and, agreement to sell, dated 05.11.2012, for
which accused no.3 - Amit Patel gave Rs.30,00,000/- to
the accused nos.8 to 10.
3.4 As per the complaint, before the Mamlatdar
and Agricultural Tribunal, in the case instituted on
23.06.2000 as Tenancy Case No.47/2000, the learned
Agricultural Mamlatdar rejected the application on
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
30.05.2001, so the complainant states that decision had
come in their favour, since the name of his wife and son
was in revenue record as Entry No.2839. It is stated by
the complainant, that Meenu Darabshah @ Dali Patel and
Others filed RTS Appeal No.44/2002, the Mamlatdar
rejected the application and the Entry No.2839 was
confirmed.
3.5 Thereafter, Meenu Darabshah @ Dali Patel and
Others filed a Special Civil Suit No.316/2002, and, since
no evidence was produced, it is stated that, on
04.07.2011, the plaint was rejected, while against the
order of the Agricultural Mamlatdar, an appeal
No.143/2003 was filed before the Deputy Collector and on
17.09.2004, the appeal came to be dismissed. Thereafter,
Meenu Darabshah @ Dali Patel and others filed an RTS
Appeal No.93/2004, that too, came to be rejected by the
Collector and against that order appeal was preferred
before Special Secretary, Revenue Department,
Ahmedabad, which also was rejected on 14.03.2016, and
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
the name of his wife and son got confirmed.
3.6 The allegation, which has been made by the
complainant against the accused is that, Meenu
Darabshah @ Dali Patel and other, in order to usurp the
right of the complainant on the land, in Special Civil Suit
No.316/2002, they, by using a stamp of the year 1986,
created a bogus and forged agreement of sale, and, used
the same in the Suit. The Satakhat was shown to have
been executed in the favour of Darabshah @ Dali Patel
Karamji Patel, by Homi Jahangir Vesuna. It is alleged by
the complainant that prior to the suit, in all the revenue
proceedings before the Mamlatdar, Deputy Mamlatdar
Prant, Collector and Special Secretary, this alleged bogus
agreement of sale of the year 1986, was never produced,
further the land owner, Homi Jahangirji Vesuna by
executing an affidavit 04.04.2012 had affirmed on oath of
Sathakhat 1986, being false. In the said Sathakhat, the
witnesses shown were Firoz Gustadji Patel and Jayanti
Balu Ahir, and when enquired from both, they have
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
denied of any such signature. Firoz Gustadji Patel
informed that he was not knowing 'Gujarati' language
and was also not aware of any such Satakhat of 1986. The
original owner Homi Jahanjir Vesuna had got the
document examined by a private handwriting expert Shri
U.V. Upadhyaya, who expressed his opinion on
19.02.2012, of the signature being false and bogus.
3.7 It is noted in the F.I.R. that thereafter Firoz
Darabshah @ Dali Patel - accused no.4, Meenu
Darabshah @ Dali Patel - accused no.5, Yasmin Hosang
Patel - accused no.6 and Porus Hosang Patel - accused
no.7, contacted Manharbhai Muljibhai Kakadiya and in
concert, planned to usurp the land of the complainant.
The complainant, in that connection, had filed
proceedings under section 145 Cr.P.C., and the
preliminary order was passed in favour of the
complainant and thereafter since Firoz Darabshah @ Dali
Patel and others had challenged the same before the High
Court, the possession of the said land was given to Surat
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Police Commissioner by the High Court, and, thus, as
stated by the complainant, at present the land is in the
possession of the Police Commissioner, Surat.
3.8 The complainant further alleges in the F.I.R.
that when he inquired from the Sub-Registrar office at
Surat, he came to know that for the land of his ownership,
Meenu Darabshah @ Dali Patel, Firoz Darabshah @ Dali
Patel, Yasmin Hosang Patel and Porus Hosang Patel had
given to Dhaval Balubhai Golkiya - accused no.2 on
22.08.2012, a Power of Attorney produced at Sr.
No.12552, registered at Sub-Registrar Office, Athwa
Office at Sr. No.2416/13. The complainant alleges that
the persons, who had given the power, were in knowledge
of the fact that they were not the land owner; in spite of
that, bogus general power of attorney had been executed,
Sitesh Jain - accused no.1 has signed as a witness to the
said power of attorney.
3.9 It is alleged that in the same way on
05.11.2012, when general power of attorney was
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
executed by Maharukh, daughter of Darabshah @ Dali
Patel and wife of Firoz Patel, Delphi Rehan Khandwani
daughter of Frioz Patel and Paniz Firoz Patel (Accused
Nos.8, 9 and 10) in favour of Amitkumar Rameshbhai
Patel - accused no.3; they were knowing that they were
not the owner of the land, and, on the very same day
agreement to sell (Sathakhat) was made in favour of
Amitkumar Rameshbhai Patel (accused no.3). The Power
of Attorney was notarized and the Sathakhat was
executed before the Sub-registrar office at Sr.
No.131/2012, and sale consideration was decided as
Rs.52,00,000/- and part amount of Rs.30,00,000/- was
received from Amitkumar Rameshbhai Patel.
3.10 The complainant states that for the proceedings
under section 145 Cr.P.C., by an order of the High Court
on 14.04.2012 in Special Civil Application No.1506 of
2012, the possession of the land was ordered to be
handed over to the Police Commissioner, Surat, and,
thereafter on 16.06.2017, it is stated that, Meenu
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Darabshah and his associates had tried to illegally
trespass the land, and, thus had informed the police, and
against Meenu Darabshah and others C.R. No.I-45/2016
under section 447 of the IPC and invoking other sections
was registered, when the complainant visited the land, he
was informed by Sitesh Jain (accused no.1) that he was
Manager of Manharbhai Muljibhai Kakadiya, and under
his instruction, he had come along with Meenu
Darabshah.
3.11 As per the complainant, the bogus Power of
Attorney is in the name of Dhaval Balubhai Golkiya, who
is a person serving with a known builder of Surat City,
named Manharbhai Muljibhai Kakadiya, which could be
verified from the sale-deeds executed under the project of
'Ashirwad Residency', and those sale-deeds executed by
Manahar Kakadiya himself and Dhaval Balubhai Golkiya,
as Power of Attorney holder and even as Power of
Attorney holder of 'Ashirwad Residency'. The
complainant, therefore, had given an application on
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
27.03.2017 before the Police Commissioner, and in
C.R.M.A. No.5160 of 2017, he has received a consent
from Police Commissioner, Zone-2 to file a complaint.
After the investigation, thus, filed a complaint against all.
4. Senior Advocate Mr. Yatin Oza along with
Advocate Mr. Apurva R.Kapadia for the applicants
submitted that for the Special Civil Suit, which came to
be dismissed for want of prosecution on 04.07.2011, the
plaintiffs moved a Restoration Application No.49 of 2012
with an application for condonation of delay of 76 days,
which was allowed. The High Court dismissed Special
Civil Application No.5896 of 2012, preferred by the
complainant challenging the order of the trial Court,
condoning the delay, on 24.04.2012. The learned trial
Court allowed the Restoration Application No.49 of 2012
filed by accused no.5 on 12.09.2014. Against that, the
complainant had preferred Special Civil Application
No.15764 of 2014, which also was dismissed by this Court
on 01.08.2017. Thus, senior Advocate Mr. Oza stated that
the Civil Suit No.316/2002 was restored, which was filed
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
by Meenu Darabshah @ Dali Patel - accused no.5 and his
family members, challenging the deeds executed by the
complainant in favour of wife his and son. The Suit is for
specific performance of unregistered agreement of sale
with possession dated 08.06.1986, and for declaration
and injunction.
4.1 Mr. Oza, senior advocate, stated that the
injunction application - Exhibit-5 was moved and the
defendants preferred a counter injunction application at
Exh.62, the Court Commissioner submitted his report
dated 30.07.2002, which reflects the possession of the
plaintiffs i.e. accused no.5 and his family. A common
written statement was filed by the defendants, the
original owner - Homi Jahangir Vesuna and the
complainant asserting, that the agreement to sell dated
08.03.1986 was forged and fabricated. Mr. Oza stated
that an application was filed by the complainant seeking
inspection of the original Satakhat on 05.09.2002, which
was inspected by the complainant and the application was
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
disposed of on 03.02.2005.
4.2 Mr. Oza, senior advocate, stated that Exhibit-5
of the plaintiffs i.e. accused no.5 and his family members
was partly allowed; while Exhibit-62 of the defendants i.e.
complainant and others was rejected, and both parties
were directed to maintain status quo of the suit property
till the final disposal of the Suit. The trial Court found
prima facie case of the plaintiff, and has believed the
agreement of sale looking to the documents, with letters
dated 01.02.1986 and 22.01.1985, as of executed in
favour of father of the plaintiffs, on defendant no.1 having
accepted the earnest money. Mr. Oza submitted that it
has been further observed in the order, that "looking to
the revenue record and looking the order of Tenancy
Case No.47/2000 and Tenancy Appeal No.47/2001, the
plaintiffs may be in possession of the suit land", on the
defendants' claim for possession on the land as a owner,
but on considering the documents, it was observed "that
the plaintiffs may be in possession of the suit land." Mr.
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Oza stated that adjoining farm owner has also executed
affidavit in support of accused no.5, which forms part of
the documents produced before the Civil Court, and, the
possession of the accused no.5 and his family members
since decades is well established.
4.3 Senior Advocate Mr. Oza, thus, stated that
there were postal communication between the original
owner and the father of the accused nos.4 and 5 at the
relevant time, about the original Satakhat dated
08.03.1986, which proves that agreement of sale with
possession of the land was executed. It is further stated
that the original owner Homi Jahangirji Vesuna has never
filed any F.I.R., while agreement to sell, stated to be
executed by Homi Jahangirji Vesuna is without possession
in favour of the wife and the son of the complainant on
acceptance of Rs.1,00,000/- by cheque dated 22.10.1997
and on the very same day, Homi Jahangirji Vesuna has
executed a Power of Attorney in favour of the first
informant, who thereafter sold the land in favour of his
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
wife and son by registered sale-deed dated 30.03.2002,
and on knowing about the sale deed, Meenu Darabshah -
accused no.5 and his family preferred Special Civil Suit
No.316 of 2002, challenging the sale deed in favour of the
wife and son of the first informant, with a prayer for
specific performance of agreement to sell with possession
dated 08.05.1986, where on the basis of the Court
Commissioner's report and the letter communication
dated 01.02.1986 and 22.01.1985 and on the basis of the
original Satakhat of 08.03.1986, the learned trial Court in
Civil Suit has believed the possession of the plaintiffs,
who are accused in the matter.
4.4 Senior Advocate Mr. Oza, thus, stated that any
opinion by a private handwriting expert would certainly
be in favour of the person,who would pay the fees to seek
the opinion.
4.5 Relying on the observations of High Court of
Kerala at Ernakulam in a case of R.G. Harilal, S/o
R.Gopinathan, Vs. Joint Registrar of Co-operative
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Societies (General) & Ors., in WA. No.2414 of 2018,
decided on 13.12.2018, Senior Advocate Mr. Oza
submitted that any expert opinion on laminated
documents would bear no value, and, thus should be
considered as invalid. Mr. Oza by relying on the judgment
of Rajeshbhai Muljibhai Patel Vs. State of Gujarat,
reported in (2020) 3 SCC 794, stated that when the
issue as to the genuineness of the document is pending
consideration in a Civil Suit, the F.I.R. need not be
allowed to continue, as it would prejudice the interest of
the parties, and the stand taken by them in Civil Suit.
4.6 Senior Advocate Mr. Oza stated that section 45
of the Indian Evidence Act, though considers the opinion
of the handwriting expert as relevant piece of evidence,
but is not conclusive, and is always open to the parties to
adduce appropriate evidence to disprove the opinion of
the handwriting expert and for that purpose section 73 of
the Indian Evidence Act, empowers the Court to form its
opinion.
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
4.7 To the arguments of Advocate Mr. B.S. Raju,
alleging agreement of sale dated 08.05.1986 to be bogus
and false, as the agreement referred the word 'Mumbai',
Advocate Mr. Oza stated that, it was only after the
notification on 28.07.1995 by Revenue and Forest
Department, Bombay, the "city of Bombay" and "the
Bombay suburban district", renamed those revenue areas
of district as "the city of Mumbai" and "Mumbai suburban
district" respectively, Mr. Oza stated that even prior to
such notification people in their day-to-day colloquial
language addressed 'Bombay' as 'Mumbai', and the said
fact gets confirmed, as the letter addressed to the
Darabshah Vesuna by Homi Jahangir Vesuna of 1st
February, refers his residence as "Mumbai", thus, stated
that mention of the place as "Mumbai" in the agreement
of sale dated 08.03.1986, should not create any doubt,
nor the other side should be taken by any surprise, rather
would reconfirm its authenticity.
4.8 In support of his submissions, Senior Advocate
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Mr. Oza also relied on the judgments in case of: (1)
Khandubhai Poonabhai Tandel Vs. State of Gujarat,
decided by this Court on 19.12.2014 in Criminal Misc.
Application No.6152 of 2010, (2) Kashiben
Lakhmanbhai Vs. Gujarat Energy Transmission
Corporation Ltd. & Anr., decided by this Court on
05.02.2015 in Special Civil Application No.4017 of 2014,
(3) Jinofer Bhujwala Vs. State of Gujarat & Anr.,
reported in 2015 (2) G.L.H. 112, (4) Manindersingh
Jolly & Anr. Vs. State of Gujarat & Anr., decided by
this Court on 02.09.2016 in Criminal Misc. Application
(For Quashing & Set Aside FIR/Order) No.9849 of 2013,
(5) Kishan Singh (Dead) Through Lrs. Vs. Gurpal
Singh And Ors., reported in (2010) 8 SCC 775, (6)
Madhubhai Virjibhai Patel Vs. State of Gujarat &
Anr., decided by this Court on 27.09.2019 in Criminal
Misc. Application No.7023 of 2009, and (7) Prakash
Ramchandra Barot & Ors. Vs. State of Gujarat &
Anr., reported in 2011 (3) G.L.H. 211.
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
5. Per contra, learned advocate Mr. B.S. Raju
along with Advocate Mr. Akash A.Singh for the
complainant, submitted that it is not a simpliciter case of
fortuitous FSL document being sought to be used against
the applicant and other co-accused in the absence of any
other circumstances; rather, in the present case the
timeline of events, the facts of the case and the conduct
of the applicant and the co-accused clearly highlight the
fraud and forgery committed, in which privately owned
land is sought to be grabbed, and the private handwriting
expert opinion and the FSL report, which came in favour
of the complainant, corroborate the same, and the same
is also borne out from the applications made to the police
authorities highlighting the criminality well before any
FSL report was received by the claimant.
5.1 Advocate Mr. Bhadresh Raju submitted that the
FIR pertains to the land bearing Survey No.113 of Village
Vesu, Surat, and applicant along with other co-accused
clearly and evidently concocted a forged and bogus
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
agreement of sale dated 08.03.1986, and sought to usurp
the legally owned land of the complainant and his family
members through various illegal and nefarious means.
5.2 Mr. Raju further submitted that the applicants
allegedly came into ownership of the said land in 1986
through the forged banakhat which also includes recitals
of possession and complete payment. The applicants have
claimed a right in the land through Darabhshah @ Dali
Patel in Tenancy Case No.47 of 2000 filed by the
applicant and co-accused on ground that Darabshah @
Dali Patel was tenant and was carrying out agriculture
activities since 1955. Mr. Raju submits that the said case
was filed after 45 years from the concocted date of 1955,
sought to usurp the said land by misusing the beneficial
provisions of section 70B and section 4 of the Gujarat
Tenancy and Agricultural Lands Act, 1948, while the
father of the applicants never claimed any rights over the
said land in his entire life time and it is evidently only
after his passing away, the entire conspiracy to create
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
fictitious and forged documents and usurp the said land
was hatched.
5.3 Advocate Mr. Raju submitted that perusal of
ULC records of the land dated 22.02.1990 clearly falsify
the bogus case of the applicant and co-accused, as the
records do not reflect name of the applicant's father as a
tenant / farmer in the said land. He submits that the land
was clearly shown to have been registered in the name of
Mr. Homi Jahangir Vesuna's father i.e. Mr. Jahangirji
K.Vesuna.
5.4 Advocate Mr. Raju stated that forged banakhat
is not even signed by the alleged purchaser Darabshah @
Dali Patel and the said banakhat was conspired to be
concocted after the death of Darabshah @ Dali Patel and
is sought to be misused by the applicant and other co-
accused being the heirs of Darabshah @ Dali Patel. He
submits that the forged banakhat is further evidently
forged and fabricated, as the address of Mr. Homi
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Jahangirji Vesuna is mentioned as "Mumbai" which is
shocking as the name of the city "Bombay" was changed
to "Mumbai" only in 1995, and it is inconceivable that a
genuine documents executed in the 1986 would provide
the address of executants as "Mumbai", a city which
never existed in 1986, which shows that the forged
banakhat was indeed prepared after 1999, in which year
the father of the applicant Darabshah @ Dali Patel passed
away and was created backdated in order to usurp the
land of the complainant and his family members. He
submits that backdating a document also amounts to
forgery of a document, even if, signatures on the
document are genuine, as the definition of forgery would
bear out and even otherwise, the forged banakhat is
evidently and clearly forged and fictitious.
5.5 Mr. Raju further submitted that it is the case of
the applicant and other co-accused that the father of the
applicant had paid the amount of Rs.16,000/- to Mr. Homi
Jahangirji Vesuna, however, they neither placed any
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
document on record to substantiate any receipt of any
cash amount, nor there is any clear submission as to why
the father of the applicant, despite making complete
payment and accepting possession as per the recitals of
the forged banakhat, never filed any suit for specific
performance within 3 years and/or during his lifetime and
why the applicant and co-accused preferred a civil suit for
specific performance after 16 years from the alleged date
of execution of the forged banakhat.
5.6 Advocate Mr. Raju submitted that the argument
of some other so-called documents having been singed by
Mr. Homi Jahangirji Vesuna is completely bogus, malafide
and misleading. He submits that once a document is
admittedly forged, any other contention of the accused
about any other circumstances would fall within the
realm of the defence of the accused, which is not to be
agitated in a quashing petition and remedy is available to
them during trial. Mr. Raju submits that the accused have
not produced the originals of such documents, as has
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
placed reliance upon and there is nothing brought on
record which would indicate that such documents exist.
Mr. Raju submits that an affidavit dated 13.09.2000 by
one Mr. Babu Chotubhai Tailor was submitted before the
Mamlatdar, Surat in Tenancy Case NO.47 of 2000,
wherein he has clearly stated that Mr. Homi Jahangirji
Vesuna had sold him certain other lands, and it is evident
that if the accused were to misuse any so-called
communication in regard to other sets of lands, the same
cannot be seriously relied upon in a quashing petition,
and therefore stated that all these aspects point out the
glaring need for a thorough and proper investigation into
the offences in question.
5.7 Mr. Raju, learned advocate for the complainant,
further submitted that the said land was transferred in
the name of Mr. Homi Jahangirji Vesuna in the year 1997,
and in the same year, Mr. Homi Jahangirji Vesuna
executed an irrevocable Power of Attorney in favour of
the complainant, and further stated that, through Power
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
of Attorney, an agreement to sell was executed on
22.10.1997 in favour of Shardaben Tamkhidas, wife of
complainant and Anup Tamkhidas, son of complainant,
and even in the revenue records the name of wife and son
of the complainant was incorporated, and all the revenue
proceedings preferred by the petitioners herein were
decided in favour of the complainant.
5.8 Advocate Mr. Raju stated that Mr. Homi
Jahangirji Vesuna clearly and consistently, all throughout,
has held that the banakhat is not executed by him, and it
is a forged document. Mr. Raju submitted that after
retirement, Mr. Homi Jahangirji Vesuna returned to Surat
in the year 2012 and after that he ran pillar to post to
support the case of the complainant, and it is unfortunate
that he passed away. He submits that the present
petitions, are preferred on an absolute misunderstanding
of the law and that the applications are preferred without
disclosing the vital facts and without any substance in
law, which shows that the accused have not approached
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
this Court with clean hands and therefore the petitions
are required to be dismissed with costs.
5.9 Advocate Mr. Raju further submitted that the
Hon'ble Apex Court and High Courts as well as this Court
have held in multiple cases that quashing of FIR is a
serious matter and should only be done in exceptional
circumstances. In the absence of such exceptional
circumstances in the present case, the investigation
should be allowed to proceed, and the accused persons
can raise all relevant defenses and objections during the
course of the trial. Advocate Mr. Raju heavily relied upon
the guidelines as laid down by Hon'ble Apex Court in the
case of Neeharika Infrastructure Pvt. Ltd. v. State of
Maharashtra, 2021 SCC Online SC 315, for
quashment of FIRs especially for cases where
investigation is ongoing and which discloses cognizable
offences. The Hon'ble Apex Court in the above case has
laid down certain guidelines, which are as under:
"80. In view of the above and for the
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
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;
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
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;
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
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 encyclopedia 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
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
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/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
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
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
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
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
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."
5.10 Mr. Raju submits that, the facts of the case, and
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
the conduct of the applicants and co-accused persons
illustrate fraudulent and forged activities, as well as a
malicious attempt to seize privately owned land.
Therefore, the complainant submits that the applicant
and co-accused persons have caused harm to him and
have committed serious offences under Sections 406,
420, 465, 467, 468, 471, 114 and 120B of IPC.
5.11 Advocate Mr. Raju stated that the applicant's
father died in 1999, and yet the applicant and/or the
applicant's father failed to institute a suit for specific
performance or failed to enforce their rights under the
Gujarat Tenancy and Agricultural Lands Act, 1948 during
his lifetime. It was only after the death of the applicant's
father, that the applicant instead filed a Tenancy Case no.
45 of 2000 under Section 70B and Section 4 of the
Gujarat Tenancy and Agricultural Lands Act, 1948, 45
years after the alleged tenancy began. Further, stated
that there was a significant delay of 16 years between the
date of the creation of the concocted forged banakhat in
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
1986, and in the filing of the Special Civil Suit No. 316 of
2002. Even under the Article 54 of the Limitation Act the
Civil Suit is hopelessly barred by limitation. He submits
that the case of the applicant and the co- accused is that
the forged banakhat, records that the father of the
applicant had paid the bogus mentioned amount of
Rs.16,000/- to Mr. Homi Jahangirji Vesuna in installments
in cash. While, neither the applicant or co-accused have
placed any document on record to substantiate any
receipt of any cash amount by Mr. Homi Jahangirji
Vesuna, nor is there any clear submission as to why the
father of the applicant, despite making complete payment
and accepting possession as per the recitals of the forged
banakhat, never filed any suit for specific performance
within 3 years and/or during his lifetime and why the
applicant and co-accused preferred a civil suit for specific
performance after 16 years from the alleged date of
execution of the forged banakhat and in fact 2 years after
having preferred a completely contradictory application
under the Tenancy Act. Further, stated that if as per the
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
recitals of the forged banakhat, if entire payment was
received, then the applicants have failed to explain
reason as to why a forged banakhat was entered into
instead of a Registered Sale deed. Advocate Mr. Raju
submitted that, it was only after the complainant entered
into the land in question, the applicant and other co-
accused created this back-dated forged and fabricated
banakhat, only with a view to defeat the rights of
Respondent No. 4.
5.12 Advocate Mr. Raju submitted that the criminal
and civil proceedings may proceed simultaneously and
cognizance in a criminal proceeding can be taken by the
criminal court upon arriving at the satisfaction that there
exists a prima facie case, as it has been held and
observed by Hon'ble Apex Court in Syed Askari Hadi Ali
Augustine Imam v. State (Delhi Administration),
(2009) 5 SCC 528 as follows :
"........Indisputably, in a given case, a
civil proceeding as also a criminal
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
proceeding may proceed simultaneously.
Cognizance in a criminal proceeding can
be taken by the criminal court upon
arriving at the satisfaction that there
exists a prima facie case. The question as
to whether in the facts and
circumstances of the case one or the
other proceedings would be stayed
would depend upon several factors
including the nature and the stage of the
case. It is, however, now well settled that
ordinarily a criminal proceeding will
have primacy over the civil proceeding.
Precedence to a criminal proceeding is
given having regard to the fact that
disposal of a civil proceeding ordinarily
takes a long time and in the interest of
justice the former should be disposed of
as expeditiously as possible. The law in
this behalf has been laid down in a large
number of decisions."
5.13 Advocate Mr. Raju submitted that it is a settled
principle of law that civil and criminal proceedings are
separate and distinct in nature. It is untenable to suggest
that the pendency of a civil suit can be a ground for
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
setting aside criminal proceedings, as observed and held
by the Hon'ble Apex Court in the case of Kamladevi
Agarwal vs State of W.B, (2002) 1 SCC 555 has
observed and held as follows:
"........In view of the of authorities to the
contrary, we are satisfied that the High
Court was not justified in quashing the
proceedings initiated by the appellant
against the respondents. We are also not
impressed by the argument that as the
civil suit was pending in the High Court,
the Magistrate was not justified to
proceed with the criminal case either in
law or on the basis propriety. Criminal
cases have to be proceeded with in
accordance with the procedure as
prescribed under the Code of Criminal
Procedure and the pendency of a civil
action in a different court even though
higher in status and authority, cannot be
made a basis for quashing of the
proceedings."
5.14 Advocate Mr. Raju therefore submitted that the
pendency of a civil suit cannot be a ground for setting
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
aside criminal proceedings, and the two proceedings are
separate and distinct, and the pendency of one cannot
influence or determine the outcome of the other.
5.15 Relying upon section 53A of the Transfer of
Property Act, 1882 (for short 'TOPA"), Advocate Mr. Raju
submitted that Section 53A of TOPA cannot be applied in
the present case of malafide, bogus and forged banakhat
which has initiated the criminal proceedings. He
submitted that once criminal justice machinery is set in
motion, Section 53A of TOPA becomes irrelevant and is
thus not applicable in the present case. Furthermore,
Section 53A of TOPA is a shield and not a sword and that
Section 53A of TOPA cannot be applied in the present
case where the criminal allegation is that the applicants
have committed the offence of claiming the possession
over the land in question through creating a backdated
malafide, fraudulent and concocted document.
5.16 Advocate Mr. Raju stated that applicants herein
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
have relied on the case of the Kishan Singh vs Gurpal
Singh (2010) 8 SCC 775, on the ground that there was
a delay in filing of FIR. He submits that this judgment is
not applicable to the present case, as it pertains to a
delay of registration of FIR after losing in a civil suit, and
in the present case, the suit was dismissed for default in
2011 by the learned Civil Court, and on 28.01.2012, for
the first time, the complainant made a representation and
application to the police authority against the applicant
and other accused persons. He submitted that when the
said representation and application was made before the
police authority, no civil suit was in existence and that
therefore, the complainant cannot be said to have lost in
the civil suit, and thereafter filed an application before
the Police authority; however multiple representations
were made to the concerned police authorities regarding
various issues pertaining to the land in question since
2012, and the purported delay in registration of the FIR
was on part of the police authorities, onus of which
cannot be attributed solely to the complainant. Mr. Raju
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
submits that on this question of law, this High Court has
held that the inaction of the authorities cannot be deemed
as a delay on the part of the complainant at Paragraph-37
in case of Labhubhai Ranchhodbhai Patel & ors vs
State of Gujarat in CR.MA No.16076 of 2014, and at
Paragraph-21 in the case of Mafat Mohanbhai Parmar
& ors vs State of Gujarat & ors. in CR.MA No. 18170
of 2012.
5.17 Advocate Mr. Raju relying on Para 7, 8, 9 and
10 of Avtar Singh Khurana vs. State 2013 SCC
OnLine Del 2721, stated that mere fact that FIR was
lodged after a certain period cannot be ground for
quashing the FIR; further it is submitted that the
invocation of Section 482 of the Cr.P.C. is not
maintainable in this case, as there is no gross abuse of
the process of law or miscarriage of justice.
5.18 Relying on Para 8, 9, 10 and 11 of the case of
State of M.P vs. Awadh Kishore Gupta (2004) 1 SCC
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
691, Advocate Mr. Raju submitted that while exercising
jurisdiction under Section 482 of Cr.P.C., the High Court
would not ordinarily embark upon an inquiry whether the
evidence in question is reliable or not or whether a
reasonable appreciation of it accusation would not be
sustained, as that is a function of the trial court. Mr. Raju
further submitted that it is a well settled law that the
Court will not be justified to embark into reliability or
genuineness of the allegations at the quashing stage, as
held by the High Court at Allahabad in case of Himanshu
Khatri vs. State of UP and Ors MANU/UP/1041/2019
as follows :
"........It is well-settled law by the Apex
Court that the power of quashing the
criminal proceeding and F.I.R. can be
exercised very sparingly and with
circumspection. The court will not be
justified in embarking upon an enquiry
as to the reliability or genuineness or
otherwise of the allegations made in the
F.I.R. or complaint. The delay in lodging
in F.I.R. in such cases cannot be a
ground to quash the F.I.R. unless the
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
court feels under peculiar circumstances
that such delay tantamounts to abuse of
process of law. Applying the aforesaid
test as laid down by the Apex Court in
catena of judgments and upon perusal of
contents of the impugned F.I.R. dated
14.11.2018, it cannot be said that the
same does not disclose the commission
of any cognizable offence. This Court
under Article 226 of the Constitution of
India cannot delve into the exercise of
appreciation of evidence and record it's
finding one or other way. At this stage, it
is on the part of Investigating Officer
only to find out and elicit the truth,
therefore, we have not proceeded to
examine the reliability or genuineness of
the allegations made in the F.I.R., as any
finding recorded by us may prejudice the
interest of the parties concerned"
5.19 Mr. Raju therefore submitted that this Court
must consider the representations made by the
complainant to the police authorities and the subsequent
actions taken, and that delay and lack thereof, by the
police authorities in their evaluation of the case must not
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
be a ground for quashing of the FIR. Mr. Raju relied the
judgment of this Court in case of Chaudhari (Loh)
Valjibhai Parthibhai vs. State of Gujarat & Anr. in
CR.MA/9107/2015, wherein it has been observed as
follows:
" 2. Today, I am confronted with a
situation where there is a clear cut
report of the handwriting expert stating
that the signatures are forged, and on
the other hand, a strong assertion on the
part of the applicants that there is a
gross delay of almost a decade in
registering the F.I.R.
13. The general rule of criminal justice is
that "a crime never dies". The principle
is reflected in the well known maxim
"nullum tempus aut locus occurrit regi"
(lapse of time is no bar to Crown in
proceeding against offenders). In this
context, I may quote the observations of
the Supreme Court in the case of Japani
Sahoo vs. Chandra Sekhar Mohanty [AIR
2007 SC 2762] as under:
"14. The general rule of criminal justice
is that "a crime never dies". The
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
principle is reflected in the well known
maxim nullum tempus aut locus occurrit
regi (lapse of time is no bar to Crown in
proceeding against offenders). The
Limitation Act, 1963 does not apply to
criminal proceedings unless there are
express and specific provisions to that
effect, for instance, Articles 114, 115,
131 and 132 of the Act. It is settled law
that a criminal offence is considered as a
wrong against the State and the Society
even though it has been committed
against an individual. Normally, in
serious offences, prosecution is launched
by the State and a Court of Law has no
power to throw away prosecution solely
on the ground of delay. Mere delay in
approaching a Court of Law would not by
itself afford a ground for dismissing the
case though it may be a relevant
circumstance in reaching a final verdict."
14. In the case of Sirajul and others vs.
State of U.P. [AIR 2015 SC (Supp) 1875,
the same principle i.e., "a crime never
dies" has been reiterated observing as
under:
"9 On the other hand, respondent No. 2-
complainant submitted that bar of
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
limitation does not apply beyond the
statutory bar under Section 468, Cr.P.C.
A crime never dies. A criminal offence is
a wrong against the society even though
committed against an individual and thus
the prosecution cannot be thrown out
merely on the ground of delay. In
support of this submission, reliance has
been placed in Japani Sahoo v. Chandra
Sekhar Mohanty [(2007) 7 SCC 394 :
(AIR 2007 SC 2762].
15 Thus, it is evident that the question of
delay in launching the criminal
prosecution may be a circumstance to be
taken into consideration in arriving at
the final decision. But, it cannot itself be
a ground for quashing the F.I.R.
5.20 Mr. Raju further submitted that, the accused
has malafidlely submitted that the FSL report should not
be considered, as it is based on the examination of a
laminated document and the complainant submits that
the laminated document was produced by the brother of
the applicant themselves, as rightly pointed out in the
papers of Chargesheet, before the police after a very long
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
period of time; in spite of the Civil Court's order at
relevant point of time, thus, indicating that they were
aware of its laminated nature all along. He submits that,
even otherwise, the FSL report is in the favour of
complainant, which clearly and conclusively establishes
that the signature of the original owner is forged and
fabricated. Mr. Raju relied on the judgment of the
Hon'ble Apex Court in the case of Manorama Naik
versus the State of Odisha & Anr in Criminal Appeal
No. 423 of 2022, as follows:
"........It is pointed out that the opinion of
the handwriting expert was filed for the
first time before the High Court and was
not available with the Trial Court at the
time when cognizance was taken. That
apart, the signatures and handwriting of
the person can also be proved under
Sections 45, 47 and 73 of the Indian
Evidence Act, 1872. Therefore, opinion
of the handwriting expert is not the only
way or mode of providing the signature
and handwriting of a person.
It will be open to the accused to raise all
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
questions and contentions before the
Trial Court in accordance with law."
5.21 Mr. Raju therefore argued that as held in the
above-mentioned case by Hon'ble Apex Court, in a case
where a signature of a person is in dispute, the
correctness of the same has to be proved in the trial
court, where the accused would have the liberty to raise
all questions and defenses. He submitted that, in the
present case, the alleged signatory of the forged
banakhat has consistently stated, under oath, that the
signature on the document is not his own; further, the
underlined circumstances also states that the signature of
original signatory is not genuine and there is nothing on
record to prove that the signature was genuine and this
transaction ever took place.
5.22 Mr. Raju to the case of Rajeshbhai Muljibhai
Patel and Ors Vs State of Gujarat and Ors., (supra),
relied upon by Senior Advocate Mr. Oza, wherein the
facts are that the Summary Suit was filed by the applicant
in which four receipts were sent for handwriting expert
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
opinion, and as conclusion, the handwriting expert's
opinion was not favorable and thereafter the FIR was
registered and it was observed that "When the issue as to
the genuineness of the receipts is pending consideration
in the civil suit, in our view, the FIR ought not to have
been allowed to continue as it would prejudice the
interest of the parties and the stand taken by them in the
civil suit." responded to submit that in the present case
the FIR is not based on the opinion of the handwriting
expert, and the first application for registration of FIR
was made on 28.01.2012, and it was much after that the
handwriting expert's report was brought on record. Mr.
Raju relies upon the case of M Krishnan vs. Vijay
Singh, (2001) 8 SCC 645, wherein it has been observed
by the Hon'ble Apex Court as follows:
"........Despite referring to various
judgments of this Court relating to the
interpretation and scope of Section 482
of the Code and the indictment that the
High Court should be slow in interfering
with the proceedings at the initial stage,
the learned Single Judge of the High
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Court passed the impugned order. The
High Court appears to have been
impressed by the fact that as the nature
of the dispute was primarily of a civil
nature, the appellant was not justified in
resorting to the criminal proceedings.
Accepting such a general proposition
would be against the provisions of law
inasmuch as in all cases of cheating
and fraud, in the whole transaction,
there is generally some element of civil
nature. However, in this case, the
allegations were regarding the forging of
the documents and acquiring gains on
the basis of such forged documents. The
proceedings could not be quashed only
because the respondents had filed a civil
suit with respect to the aforesaid
documents. In a criminal court the
allegations made in the complaint have
to be established independently,
notwithstanding the adjudication by a
civil court. Had the complainant failed to
prove the allegations made by him in the
complaint, the respondents were entitled
to discharge or acquittal but not
otherwise. If mere pendency of a suit is
made a ground for quashing the criminal
proceedings, the unscrupulous litigants,
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
apprehending criminal action against
them, would be encouraged to frustrate
the course of justice and law by filing
suits with respect to the documents
intended to be used against them after
the initiation of criminal proceedings or
in anticipation of such proceedings. Such
a course cannot be the mandate of law.
Civil proceedings, as distinguished from
the criminal action, have to be
adjudicated and concluded by adopting
separate yardsticks. The onus of proving
the allegations beyond reasonable doubt,
in criminal case, is not applicable in the
civil proceedings which can be decided
merely on the basis of the probabilities
with respect to the acts complained of.
5.23 Mr. Raju relied on the case of Vijayander
Kumar v. State of Rajasthan, (2014) 3 SCC 389,
wherein it has been observed by the Hon'ble Apex Court,
as follows:
"Learned counsel for the respondents is
correct in contending that a given set of
facts may make out a civil wrong as also
a criminal offence and only because a
civil remedy may also be available to the
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
informant/complainant that itself cannot
be a ground to quash a criminal
proceeding. The real test is whether the
allegations in the complaint discloses a
criminal offence or not. This proposition
is supported by several judgments of this
Court as noted in Paragraph 16 of
judgment in the case of Ravindra Kumar
Madhanlal Goenka and Another vs.
Rugmini Ram Raghav Spinners Private
Limited"
Mr. Raju, therefore submitted that the case
referred to by the applicants herein cannot be applied to
the present case, as the FIR is not solely based on the
opinion of the handwriting expert and that facts and
circumstances underlined are absolutely different from
the present case.
5.24 Advocate Mr. Bhadresh Raju also relied upon
the case of Khandubhai Poonabhai Tandel v. State of
Gujarat 2014 SCC OnLine Guj 15476 : (2015) 56 (2)
GLR 1146 and Madhubhai Virjibhai Patel Versus
State Of Gujarat & Ors in CR.MA No. 7023 of 2009,
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
which states about the delay in filing of FIR is a ground
for quashing of the FIR. However, the case relied upon by
the applicants herein does not apply to the present case,
as since 2012, complainant has ran from pillar to post for
filing of the FIR and that even after several applications
and by the direction of this High Court, the FIR came to
be registered in 2017. Further, the applicant has not
approached this Court with clean hands as, the very first
claim of the applicant for possession over the disputed
land was made with malafide intentions and the
petitioners have claimed their tenancy rights over the
land after a delay of 45 years and have filed the suit after
a delay of 16 years. For the said contention Mr. Raju
relied upon the Jiteshbhai Rameshbhai Gajeria vs
State of Gujarat in CR.MA No. 10765 of 2021. This
Court in the above mentioned case has observed and held
as follows:
"Merely because there is delay in filing
FIR, the benefit cannot be given to the
present applicant more particularly,
when there is an explanation given by
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
the complainant."
5.25 Advocate Mr. Raju stated that the applicants
have referred to the case of Prakash Ramchandra
Barot v. State of Gujarat 2011 SCC OnLine Guj 4554
: (2012) 53 (1) GLR 449 : (2011) 3 GLH 211, wherein
it was observed that the FIR was quashed on the ground
that first informant never said that the sale deed was
false and that the offence of the forgery was not made
out. However, in the present case the original signatory
of the said document since inception has stated on oath
and that even otherwise, his signature are not genuine
and are forged and fabricated.
5.26 Advocate Mr. Raju submitted that, the FSL
report along with the opinion of Handwriting Expert is in
favour of the complainant and upon perusal of the same,
it becomes crystal clear that the banakhat is forged,
concocted, bogus and backdated and therefore this Court
is not required to decide or adjudicate the disputed facts
in the present case, while exercising the discretion under
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
the provisions of Article 226 of Constitution of India, 1950
read with Section 482 of CrPC, as the same is subject
matter to be dealt with by the trial Court. Advocate Mr.
Raju further submitted that the allegations made in the
FIR are serious and requires a thorough investigation,
and therefore, the petitioners herein cannot be allowed to
escape the consequences of their alleged actions by
quashing the FIR on flimsy grounds. Further, submitted
that the evidences produced on record as well as
provided to the investigating agency by the complainant,
including the private handwriting expert opinion, is
sufficient to establish a prima facie case against the
applicants herein. Despite the FSL Report being
conclusive in nature, it was the contention of the
applicant that the FSL report is inconclusive cannot be
the sole ground for quashing the FIR, it was argued by
the applicants that second report of FSL was awaited
which has been submitted before this Court in the sealed
cover. Mr. Raju stated that, without prejudice to the
rights and contentions of complainant with respect to the
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
second FSL report, the fact remains that when there are
serious questions and disputes of facts, the same are not
required to be dealt with in quashing proceedings and
therefore, the investigation of the FIR and further events
in connection with the said acts and omissions must be
permitted to continue rather than quashing the FIR at
this early stage. Advocate Mr. Raju submitted that in the
absence of any exceptional circumstances in the present
case, the investigation should be allowed to proceed, and
the accused persons can raise all relevant defenses and
objections during the course of the trial.
5.27 Mr. Raju submitted that in view of the
established law of the land, as held and laid down by the
Hon'ble Apex Court, the High Court has very limited
jurisdiction while deciding or exercising its powers u/s
482 of Cr.P.C., and the Hon'ble Court is not required to
conduct a mini-trial by asking the prosecution to prove all
the charges against the accused persons, as it is prima
facie established in the present case and therefore, the
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
complainant prays that this Court may not exercise its
jurisdiction in favour of the applicants.
5.28 Mr. Raju submitted that S.Cr.A. No.6429 of
2017 has been preferred by the petitioners, seeking
directions against the investigating officer to consider
their representations before taking any further steps in
connection with the application dated 03.04.2017 made
by the complainant. Mr. Raju further submitted that the
applicant in S.Cr.A. No.6429 of 2017 has prayed for
issuance of writ of mandamus commanding Police
Inspector, Umra Police Station, Surat to consider the
representation dated 08.08.2017 made by the applicant in
connection with an application dated 03.04.2017 filed by
the complainant before taking any further action. Mr.
Raju submitted that the said petition is itself infructuous,
and any prayer made thereof cannot be allowed.
5.29 Advocate Mr. Raju submitted that in connection
with the application dated 03.04.2017, FIR bearing CR
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
No.I-215 of 2017, dated 22.08.2017 has been registered
by Umra Police Station, Surat against the applicant and
other accused persons. He submits that the present
petition has been filed by the applicant on 23.08.2017,
and when the present petition was filed, the concerned
Police Authority had already taken action on the
application dated 03.04.2017 by registering the FIR on
22.08.2017. Therefore, the prayer sought for has become
infructuous and therefore, the petition is required to be
dismissed as infructuous. Mr. Raju submitted that the
applicant has also prayed to issue a writ of mandamus
commanding Respondent No.3 to adhere to a circular
issued by Commissioner of Police before registration of
FIR pursuant to application dated 03.04.2017. He submits
that this prayer also has become infructuous as the
Respondent No.3 has already registered the FIR pursuant
to application dated 03.04.2017, and the applicants have
referred to a circular of Commissioner of Police that
requires FSL report for registration of FIR. He submits
that without prejudice to the case of the complainant, the
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
FSL report on the forged banakhat has come positive, i.e.,
the signatures have been confirmed to be forged and
therefore also, the FIR is maintainable and is not required
to be quashed. Advocate Mr. Raju submits that pursuant
to the registration of FIR, the applicants have already
preferred application for quashment of the same, and
thus, prayer submitted in S.Cr.A No. 6429 of 2017 has
become infructuous and is required to be dismissed.
Advocate Mr. Raju submitted that in prayer-C, the
applicant has prayed to secure the forged banakhat and
send the same for FSL. However, applicant has made this
prayer malafidely as the forged banakhat was always in
the custody of the applicant and the same was produced
before the Investigating Agency by the brother of the
applicant itself. Mr. Raju further submitted that, the FSL
report on the very same forged banakhat has come
positive, meaning the signature therein was forged.
5.30 In Regard to the petition seeking quashment of
order dated 08.01.2018 passed by Ld. 2 nd Addl. Sessions
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Judge, Surat in Cr.M.A. No. 3360 of 2015 below Exh.-34
u/s 145 Cr.P.C. proceedings, Mr. Raju submitted that in
SCRA 679 of 2018, the applicants have sought quashment
of the order dated 08.01.2018 passed below Exh.-34 by
the learned Additional Sessions Judge, Surat whereby the
learned Judge was pleased to direct the applicants to
hand over the possession of the subject property to the
complainant. Advocate Mr. Raju stated that, upon an
application dated 28.01.2012 made by complainant to
P,I,, Umra Police Station, the P,I, submitted a report
dated 09.02.2012 to the learned Executive Magistrate
and proceedings under section 145 of CrPC came to be
initiated. Advocate Mr. Raju relied on the judgment of
Hon'ble Apex Court in Jagdish Prasad v. Angoori Devi,
(1984) 2 SCC 590, to submit that a writ of certiorari, as
prayed by the applicants in the present case cannot be
allowed to correct an error of fact, which even otherwise,
is not the case herein, as the complainant is in rightful
possession of the said land as held by the learned 2 nd
Addl. Sessions Judge, Surat and thus, prayed to dismiss
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
the petition. Mr. Raju submitted that the suit filed by the
applicants came to be dismissed for default on
04.07.2011 and thereafter the same was restored on
12.09.2014. He submits that the proceedings under
section 145 of Cr,P,C, were initiated in the year 2012,
when the suit was already dismissed for default, and,
therefore it cannot be said that as the suit is pending, the
proceeding under section 145 Cr.P.C. with a conclusive
order passed under Section 145 Cr.P.C. by the magistrate
of competent jurisdiction should be set aside merely
because the unsuccessful party has approached the Civil
Court. He submits that an order made u/s 145 Cr.P.C.
deals only with the factum of possession of the party as
on a particular day, as the same has been held by the
Hon'ble Apex Court Jhummamal alias Devandas v.
State of Madhya Pradesh and ors., (1988) 4 SCC
452.
5.31 Advocate Mr. Raju further submitted that,
the present petition has been preferred under Article 226
of Constitution of India and not under Article 227 of
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Constitution of India, and a mere wrong decision without
anything more is not enough to attract the jurisdiction of
the High Court under Article 226 of Constitution of India,
be it a Writ of Certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of
fact or law. He submitted that the power to issue a writ of
certiorari and the supervisory jurisdiction are to be
exercised sparingly and only in appropriate cases where
the judicial conscience of the High Court dictates it to act
lest a gross failure of justice or grave injustice should
occasion, as has been held by the Hon'ble Apex Court in
Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC
675.
5.32 Advocate Mr. Raju further submitted that the
arguments made and grounds raised in the quashing
petitions by the complainant should be considered to
know the conduct of the applicants, that despite the
applicants claiming their father's possession since 1955,
they failed to show on record, why have they have not
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
filed any tenancy proceedings till 2000, i.e. after the
death of their father in 1999, and have further failed to
prove their claim of possession on the land in question.
Moreover, the FSL report proving the concocted
document as forged document itself disentitles the
applicants of their claim of possession and also any right
to claim possession in the land in question. Mr. Raju,
therefore, submitted that the order dated 08.01.2018
passed below Ex.34 by the learned Additional Sessions
Judge, Surat is not required to be interfered with and
therefore SCRA No.679 of 2018 is required to be rejected
with cost.
5.33 Advocate Mr. Raju submitted that the
applicants have preferred the above petitions with an
absolutely malafide intention to evade the administration
of justice and criminal machinery in force, and therefore
in the interest of justice as well, all connected matters are
required to be rejected with costs by this Court.
6. Having heard both the Advocates, perusal of
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
the petition reflects that, Accused nos.4, 5 and 6 have
made a prayer in Special Criminal Application No.679 of
2018 to set aside the order below Exhibit-34 dated
08.01.2018 passed in Criminal Misc. Application No.3360
of 2015 passed by 2nd Additional Sessions Judge, Surat,
and further by an amended prayer has asked for an
appropriate order or direction to respondent nos.2 and 3
to hand over the possession of the subject land to the
applicants.
6.1 The applicants state that their father Darabsha
@ Dali Faramji Patel was in possession of the subject land
as a tenant, prior to 1955, and after the death of
applicant's father - Darabshah @ Dali Faramji Patel, they
had cultivated the land and were in possession of the
land. It is stated that the original tenant Darabshah @
Dali Faramji Patel and the original owner Homi Janhagirji
Vesuna, both being of parsi Community, had cordial
relations and because of the trust, the original owner
agreed to sell the land to the father of the applicants,
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
agreement was executed on 08.03.1986. The agreement
acknowledges the possession of the father Darabshah,
who expired on 13.03.1997, and thereafter because of the
dispute between the parties, the applicants initiated
tenancy proceedings in the year 2000, which reached till
Gujarat Revenue Tribunal, and vide order dated
30.09.2005 in Revision Application No.10/BS/42/2002, the
matter came to be remanded before the Mamlatdar for
deciding the matter afresh, and it is stated that the issue
still pending before the Mamlatdar, Krushi Panch,
Chaursi.
6.2 The order, challenged is under section 145 of
the Cr.P.C., where by an order dated 08.01.2018, the 2 nd
Additional Sessions Judge, Surat allowed Criminal Misc.
Application No.3360 of 2015, and ordered to hand over
the possession to the complainant - Surendrakumar
Ishwarlal Tamkhidas, which was in the possession of
police Commissioner, Surat, Vesu in accordance to the
order dated 14.05.2012 in Special Criminal Application
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
No.1506 of 2012, where the possession with the police
Commissioner, Surat of Regular Survey No.209 with new
Regular Survey No.111/3 was handed over after a
panchnama. The learned Additional Sessions Judge while
passing the order has observed that his order of handing
over the possession and the observation would be subject
to final order of Senior Civil Judge, Surat in Special Civil
Suit No.316 of 2002. The issue, which was raised by the
learned Additional Sessions Judge for consideration as to
the possession of the disputed land, two months prior to
the date of handing over the possession to the Police
Commissioner, as per Section 145 of the Cr.P.C. The
matter came for decision before the Additional Sessions
Judge, as the order dated 23.09.2015 passed by 5 th
Additional Sessions Judge, Surat in Criminal Revision
Application No.83 of 2015 came to be quashed in view of
the order passed on 08.09.2017 by this Court in Special
Criminal Application (Quashing) No.7677 of 2016. The
Court has observed and gave the final direction in terms
of Paras 26 to 35, which is reproduced herein under:
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
"26. Section 145 is intended only to
provide a speedy remedy for the
prevention of breaches of peace arising
out of the dispute relating to the
immovable property by maintaining one
or other of the parties in possession.
27. The object of this section is to
enable a Magistrate to intervene and
pass a temporary order in regard to the
possession of property in dispute,
having effect until the actual right of
one of the parties has been determined
by a competent Civil Court. The
Magistrates should guard themselves
against the section being abused by
person using it with the object of
getting possession of the property and
driving the other side to figure as a
plaintiff and prove his title. In a
proceeding under Section 145, a
Magistrate has not to enter into the
question of title or the right to possess
and the foundation of his jurisdiction is
the existence of a dispute likely to
cause breach of the peace. The
proceedings under Section 145 of the
Code are quasi judicial and quasi
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
administrative in nature.
28. Section 146 of the Code confers
power upon a Magistrate to attach
subject of dispute and to appoint a
Receiver. Section 146 of the Code reads
thus :
"146. Power to attach subject
of dispute and to appoint
receiver. (1) If the Magistrate at
any time after making the order
under subsection (1) of section 145
considers the case to be one of
emergency, or if he decides that
none of the parties was then in
such possession as is referred to in
section 145, or if he is unable to
satisfy himself as to which of them
was then in such possession of the
subject of dispute, he may attach
the subject of dispute until a
competent Court has determined
the rights of the parties thereto
with regard to the person entitled
to the possession thereof:
Provided that such Magistrate
may withdraw the attachment at
any time if he is satisfied that
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
there is no longer any likelihood of
breach of the peace with regard to
the subject of dispute.
(2) When the Magistrate
attaches the subject of dispute, he
may, if no receiver in relation to
such subject of dispute has been
appointed by any Civil Court, make
such arrangements as he considers
proper for looking after the
property or if he thinks fit, appoint
a receiver thereof, who shall have,
subject to the control of the
Magistrate, all the powers of a
receiver appointed under the Code
of Civil Procedure, 1908 (5 of
1908):
Provided that in the event of a
receiver being subsequently
appointed in relation to the subject
of dispute by any Civil Court, the
Magistrate
(a) shall order the receiver
appointed by him to hand over the
possession of the subject of
dispute to the receiver appointed
by the Civil Court and shall
thereafter discharge the receiver
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
appointed by him;
(b) may make such other incidental
or consequential orders as may be
just."
29. Section 146 is a corollary to
Section 145. A Magistrate is
empowered under Section 146(1) to
attach the subject of dispute in three
cases, namely, (i) if it is a case of
emergency; or (ii) if none of the parties
was in possession; or (iii) if no decision
is possible as to the possession.
30. In the case on hand, indisputably,
it is the applicant herein, who preferred
an application before the concerned
police about the dispute as regards the
possession of the land in question with
the other side. The police, in turn,
thought fit to file an appropriate report
before the Executive Magistrate in that
regard, and the Executive Magistrate,
in turn, thought fit to initiate
proceedings under Section 145 of the
Cr.P.C. When the matter reached
before this Court, an order came to be
passed on 14th May 2012 in the Special
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Criminal Application No.1506 of 2012
directing the Commissioner of the
Police, Surat city to take over the
possession of the property, after
drawing a panchnama of the actual
position as on that date. The
Commissioner of Police, Surat city,
accordingly, took over the possession,
and as on date, the police is holding the
possession as a neutral agency.
31. The Executive Magistrate, while
passing the final order in the Section
145 of the Cr.P.C. proceedings, held
the private respondents herein to be in
peaceful and actual possession of the
land on the date of filing of the
proceedings and two months prior
thereto. The Magistrate also passed an
order directing both the parties to
maintain peace and tranquility. The
applicant herein, being dissatisfied with
such order passed by the Executive
Magistrate, challenged the same before
the Sessions Court by filing a Criminal
Revision Application No.83 of 2015.
The Revisional Court, ultimately,
allowed the revision application vide
order dated 23rd September 2015 and
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
took the view that the proceedings
initiated under Section 145 of the
Cr.P.C. were unwarranted. The
Sessions Court, at the time of disposal
of the revision application, did not say a
single word as regards restoration of
the possession. In such circumstances,
the applicant herein had to file a
miscellaneous application being the
Criminal Miscellaneous Application
No.3360 of 2015 in this regard before
the Revisional Court. The Revisional
Court, vide order dated 28th March
2016, thought fit to reject the same on
the premise that it is now for the Civil
Court to pass appropriate orders so far
as the aspect of possession is
concerned.
32. I am of the view that pending the
proceedings under Section 145 of the
Cr.P.C., if the authority concerned or
any Court of law has passed an order of
attachment of the property, then, on
such proceedings being dropped or
concluded finally, the necessary
direction for the restoration of
possession of the property so attached,
has got to be passed in accordance with
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
law. The police has been holding the
possession of the property since long as
a neutral agency. The proceedings have
concluded finally. It would be too much
to say that for the purpose of
possession, the parties should obtain
appropriate orders from the Civil Court
in the civil suit, which is pending. If the
Revisional Court thought fit to quash
the order passed by the Executive
Magistrate on the premise that the
proceedings under Section 145 of the
Cr.P.C. were unwarranted and
pursuant to the initiation of such
proceedings, if possession is taken over
from a particular party, then the Court
owes a duty to pass an appropriate
order for restoration of the possession.
33. I am of the view that this aspect
should be relooked by the Revisional
Court, and after hearing both the sides,
the Revisional Court shall pass an
appropriate order as regards
restoration of the possession. Let this
exercise be undertaken by the
Revisional Court independent of any
findings as regards the possession
recorded time to time by both the
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Executive Magistrate as well as by this
Court, including the first order passed
by the Sessions Court. For the purpose
of deciding this issue of restoration of
the possession, the Court concerned
shall keep in mind two things: (1) who
was in actual possession of the land in
question on the date when the
Commissioner of Police, Surat took
over the possession by drawing a
panchnama, and (2) what was the
position prior to two months before the
date on which the report of the police
was received by the Executive
Magistrate.
34. In the result, the impugned order
passed by the 2nd Additional Sessions
Judge, Surat dated 28th March 2016 in
the Criminal Miscellaneous Application
No.3360 of 2015 is quashed. The
matter is remitted to the Court of the
2nd Additional Sessions Judge, Surat
for fresh consideration of the issue as
regards restoration of the possession to
a particular party. Let this exercise be
undertaken at the earliest, and
preferably, within a period of two
months from the date of receipt of this
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
order, an appropriate order, in
accordance with law, be passed. The
order that may be passed by the
Sessions Court shall be subject to the
order that the Civil Court may pass in
the civil proceedings between the
parties."
35. With the above, this application is
disposed of.
6.3 After pronouncement of the judgment, learned
counsels for the respective parties brought to the notice
to subsequent development in the matter, thus, the Court
thereafter passed the further order, which is reflected
herein below:
"After the judgment is
pronounced, the learned counsel
appearing for the respective parties
brought to my notice few subsequent
developments that have taken place in
the matter. The civil suit, which was
filed by the client of Mr. Y.N. Oza, the
learned senior counsel appearing in
the matter, was dismissed for default
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
at one point of time. Later, the said
suit was restored to its original file.
The other side, being dissatisfied with
such order of restoration of the suit,
had come before this Court. This Court
has upheld the order passed by the
Civil Court restoring the civil suit.
Thus, as on date, the Special Civil Suit
No.316 of 2002 is on the file of the
learned 5th Additional Senior Civil
Judge, Surat. As the civil suit is of the
year 2002 and the issues have already
been framed long time back, the Court
concerned shall now commence with
recording of the oral evidence of the
parties. With a view to bring an end to
the dispute, the Court concerned is
directed to take up the civil suit for
hearing at the earliest and see to it
that the same is disposed of on or
before 31st May 2018 with the
judgment. Both the sides are directed
to cooperate with the Court concerned
for effective and expeditious disposal
of the civil suit. Till the appropriate
orders are passed by the Sessions
Court concerned, the earlier
arrangement, as regards possession,
shall continue.
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
6.4 In an earlier order, on 23.03.2015 in Special
Criminal Application No.1506 of 2012, the Court had
passed an order in terms of paragraph nos.21 and 22,
which reads as under:
21. I am left with no alternative but to
direct the Additional Executive
Magistrate to proceed further with the
proceedings which are pending with
him as on today and pass a final order
in accordance with law, subject to the
final order that the Civil Court may
ultimately pass on disposal of the suit.
However, having regard to the
peculiar facts and circumstances of the
case and the nature of dispute between
the parties, I would like to continue the
arrangement made by this Court while
passing the order dated 14th May
2012. Vide order dated 14th May 2012,
noted above, the Commissioner of
Police, Surat City, was directed to take
over the possession of the property
after drawing Panchnama of the actual
possession prevailing on that day with
a view to obviate any further dispute
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
between the parties. Therefore, the
possession shall remain with the
Commissioner of Police, Surat, till the
final conclusion of the proceedings
before the Additional Executive
Magistrate under Section 145 of the
Code. Since the Additional Executive
Magistrate would now be proceeding
further to dispose of the entire
proceedings, it shall be open for both
the parties to adduce necessary
evidence as regards their respective
claims. It will be open for the
petitioner herein to point out to the
Additional Executive Magistrate that
the proceedings under Section 145 of
the Code are not warranted, as he has
already filed a Civil Suit, which is
pending as on today before the Civil
Court.
22. The proceedings of Case
No.1 of 2012 pending before the
Additional Executive Magistrate,
Surat, shall be disposed of finally on or
before 31st of May 2015. I clarify that I
have not gone otherwise into the
merits of the matter. It is for the
authority concerned to now proceed
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
further in accordance with law, since
the challenge in this petition is to a
preliminary order.
With the above, this petition is
disposed of .
6.5 In Special Criminal Application No.7677 of
2016, the Revisional Court was asked to consider the
issue of restoration of possession by keeping in mind two
things: (1) who was in actual possession of the land in
question on the date when the Commissioner of Police,
Surat took over the possession by drawing a panchnama,
and (2) what was the position prior to two months before
the date on which the report of the police was received by
the Executive Magistrate. By order dated 23.03.2015 in
Special Criminal Application No.1506 of 2012, the
arrangement made by this Court, while passing the order
dated 14.05.2012, was extended, as the Commissioner of
Police, Surat City was directed to take over the
possession of the property after drawing panchnama of
the actual possession prevailing on that day with a view
to obviate any further disputes between the parties, and
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
therefore, the possession was directed to remain with
Commissioner of Police, Surat till final conclusion of the
proceedings before the Additional Executive Magistrate
under section 145 of the Cr.P.C.
6.6 The learned Additional Sessions Judge, thus,
after considering the issues to be decided, as directed by
this Court, came to the conclusion that as per MOU of
2005, opponent nos.3 to 5 had admitted that they were
not in possession of the subject land, which is suit
property of Special Civil Suit No.316 of 2002, and learned
Additional Sessions Judge has relied on the document of
Land Measurement Rectification (Durasti), Mark 16/2 of
Exhibit-16, Annexure-K from page no.78 to 82, and had
also observed that on behalf of original owner, Homi
Jahangir Vesuna, i.e. the power of attorney holder i.e. the
applicant - Surendrakumar Ishwarlal Tamkhidas had
undertaken the proceedings for the rectification in the
measurement, and the he had preferred an application on
19.12.1999 before the Deputy Collector, Choryasi. It is noted
that the copy of the order of that proceeding was placed at
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Exhibit-16 at Serial No.12, Annexure-A, and in the year 2002
on behalf of original owner Homi Jahangir Vesuna, the
applicant before the Town Planning Development Officer had
remained present before the proceedings of T.P. Scheme, and
the communication with regard to the land in connection to
Tenancy Case and before the Revenue Authority, the applicant
i.e. complainant - Surendrakumar Ishwarlal Tamkhidas
remained present, while there was no explanation from
the side of the opponent nos.3 to 5, only they have relied
upon the Postcards and a Certificate of Talati-cum-Mantri
regarding the cattle shed, and the opponent nos.3 to 5
being agriculturists also own agricultural land apart from
the subject land.
6.7 The learned Additional District Judge went on
to make the observation that in the Certificate regarding
the cattle shed, no mention is made of the survey number
of the disputed land, and since opponent no.3 also holds
the agricultural land apart from the disputed land, the
learned Court disbelieved that they were in possession of
the land, the applicant - complainant had made a
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
grievance that when he was engaged in the ceremony of
the marriage of his son, Manahar Kakadiya and the
present applicants, who were respondent nos.3 to 5 in the
matter, on 27.01.2012 had tried to construct a compound
wall, thus had given an application on 28.01.2012 to the
police, and his statement was recorded. Taking into
consideration such facts, the learned Additional District
Judge to come to the opinion, noted that on 10.12.2012,
the Umra Police Station had filed a report before the
Additional Executive Magistrate, that two months prior,
the possession was not of respondent nos.3 to 5, but of
the applicant.
6.8 The learned Additional District Judge in the
impugned order had failed to take into consideration the
observations made by the Civil Judge in order below
Exhibit-5 in Special Civil Suit No.316/2002, as the order
dated 06.05.2006, Exh.5, came to be partly allowed of the
present applicants, while application, Exhibit-62 of the
present complainant i.e. applicant before the Additional
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Sessions Judge in Criminal Misc. Application No.3360 of
2015, was rejected. Both the parties were directed to
maintain status quo and the learned Civil Court in order
below Exhibit-5 was pleased to observe, as under:
".... Hence, on looking this document
with letter dtd. 01.02.1986 and
22.01.1985, it is believable that, an
agreement to sell is executed in favour
of father of plaintiffs and defendant
No.1 have accepted the earnest
money.... ."
"... On looking to revenue record and
on looking the order of tenancy case
No.47/2000 and tenancy appeal
No.47/2001 it is appears that, the
plaintiffs may be in possession of the
suit land. Of course, the defendants
have also claimed for possession as a
owner. But on considering the above
document at this juncture, the plaintiffs
may be in possession of the suit
land...."
7. This Court while passing the further order in
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Special Criminal Application (Quashing) No.7677 of 2016,
had observed that till the appropriate orders are passed
by the Sessions Court concerned, the earlier
arrangement, as regards possession, shall continue. Here,
from the facts of the matters, the possession of the
property was noted to be in the hands of the plaintiff of
Special Suit No.316 of 2002 i.e. present applicants by the
learned Civil court. Apart from the agreement to sell
dated 08.03.1986 acknowledging the possession of the
father of the applicants, copy of postcards written by the
original owner to the father of the plaintiffs of the Suit,
copy of the Court Commissioner Report dated 31.07.2002
in Special Civil Suit No.316 of 2002 and the copies of the
tax receipts etc.; and further the affidavit of the adjoining
from owner were in support on record. The Additional
Sessions Judge has referred to a Memorandum of
Understanding by opponent nos.3 to 5 i.e. present
applicants and has relied upon the conduct of the present
complainant of having attended the proceedings before
the Town Planning Office on behalf of original owner,
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
while the Additional District Judge did not believe the
postal communication between the original owner and the
father of the applicants, nor the certificate which was
given by the Talati-cum-Mantri; while the learned Civil
Judge in Special Civil Suit has believed the letters dated
01.02.1986 and 22.01.1985, and also took notice the
order of Tenancy Case No.47 of 2000 and Tenancy Appeal
No.47 of 2001, to consider that the plaintiffs were in
possession of the suit land. The observations made by the
Additional Sessions Judge are contrary to what has been
noted in the order passed in special Civil Suit. The
documents relied upon to mark the possession; in the
Special Civil Suit, has not been considered by the learned
Additional Sessions Judge, while reliance was placed on
the report of the Umra Police Station; and further about
the participation of complainant in Land Measurement
Rectification (Durasti) proceedings, for directing the
possession. The documents, which have been relied upon
to observe the possession of the applicants in Criminal
Misc. Application No.3360 of 2014, would be irrelevant to
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
decide the actual possession of the suit property on land,
since any document executed by the present applicants
by way of M.O.U., would not displace them with the
possession of land, which they hold in view of the
agreement of sale dated 08.03.1986, supported by the
letters dated 01.02.1986 and 22.01.1985 along with tax
receipts and the Court Commissioner's report dated
31.07.2002 in Special Civil Suit No.316/2002, and the
affidavit of the adjoining farm owner, which has been
relied upon by the learned Civil Judge.
8. The proceedings before the learned Additional
Sessions Judge was under Section 145 of the Cr.P.C.,
while the dispute regarding the possession and ownership
is pending before the Civil Court, where the order of
status quo had been passed; the jurisdiction of District
Magistrate oust, either to the proceedings under section
145 or 146 of the Cr.P.C. The challenge before the
Additional Sessions Judge was against the order of
Divisional Magistrate, and, by an order dated 23.09.2015
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
by 5th Additional Sessions Judge in Criminal Revision
Application No.83 of 2015, the order passed by the
Executive Magistrate, Surat in Case No.1 of 2012, dated
30.05.2015, was quashed and set aside, as it was
remitted back, and the case was referred to Additional
District Judge for deciding the issue of restoration of the
possession with a direction to keep in mind the actual
possession of the land in question on the date when the
Commissioner of Police took over the possession by
drawing a panchnama; and the position prior to two
months before the date of the report of the police
received by the Executive Magistrate. The said direction
was with observation of object of section 145 of the
Cr.P.C., which enables the Magistrate to intervene and
pass a temporary order in regard to the possession of
property in dispute, having effect until the actual right of
one of the parties has been determined by a competent
Civil Court.
8.1 Here, when the Civil Court had made a prima
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
facie observation by passing an order below Exhibit-5
regarding the possession of the property, and when the
plaintiffs' possession on the suit land was considered with
documents referred, the Additional District Judge was
required to take that fact into consideration, since the
order was passed under the premise of provision of
section 145 of the Cr.P.C., which intents to provide
speedy remedy for prevention of breach of peace, arising
out of the dispute relating to immovable property by
maintaining one or other party in possession.
8.2 Section 146 of the Cr.P.C. is with regard to
attachment to the subject in dispute and to appoint a
receiver. Here, in this case, possession of the property
was handed over to the Police Commissioner, and, as
provided under section 146 Cr.P.C., while making an
order under section 145 Cr.P.C., when case perceived is
of emergence, and the District Magistrate decides that
none of the parties were then in such possession, as
referred to in section 145 Cr.P.C., and he is unable to
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
satisfy himself as to which of them was then in such
possession of the subject in dispute, then he may attach
the subject of dispute until a competent Court determines
the rights of the parties, that too, with regard to the
person entitled to the possession thereof. Thus, in view of
the provisions of section 146 Cr.P.C., the learned
Additional Sessions Judge failed to consider the order
passed below Exhibit-5, and rejection of Exhibit-62 in the
Special Civil Suit.
9. Criminal Misc. Application (Direction) No.1 of
2018 in Special Criminal Application No.6429 of 2017 has
been preferred by Minu Darabsha @ Dali Patel seeking
direction to the Investigating Officer to remove the
lamination on the agreement to sell dated 08.03.1986,
and to send it to the FSL for verification afresh and to call
for report.
9.1 The facts narrated in the memo of application
suggests that this Court vide order dated 06.04.2018 in
the main quashing petition along with allied matters
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
directed the investigating officer to independently collect
the documents, having original hand writing of author of
the agreement to sell in question, and forward the same
for opinion of the hand writing expert. This Court also
directed the Investigating Officer that the said exercise
shall be undertaken within 15 days from the date of the
order, and Forensic Science Laboratory was also directed
to forward the report at the earliest. It is stated that the
Investigating Officer has collected the agreement to sell
dated 08.03.1986 and sent it to F.S.L. for verification
without removing the lamination on the said document.
9.2 The report received of the handwriting expert
and relied upon by the complainant is not on the original
disputed document. The prayer of Minu Darabsha @ Dali
Patel is to the effect of directing the Investigating Officer
to remove the lamination on the agreement of sale dated
08.03.1986, and to further direct him to sent it to FSL for
verification afresh. The original disputed document would
be placed in the Civil Suit. It is stated that Investigating
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Officer has collected the document dated 08.03.1986;
however, as per the applicant, the said document is
laminated, and according to Senior Advocate Mr. Oza,
who has relied upon the judgment of R.G. Harilal, S/o
R.Gopinathan, Vs. Joint Registrar of Co-operative
Societies (General) & Ors. (supra), the expert opinion of
the laminated document would bear no value.
10. Criminal Misc. Application No.6396 of 2017 has
been filed for quashing of F.I.R. being C.R. No.I-45 of
2016 filed by A.S.I., Umra Police Station under sections
447, 114 and 188 of Indian Penal Code against accused -
Minu Darabsha @ Dali Patel.
10.1 The allegations levelled in the complaint
against the accused are that, when complainant - A.S.I. of
Umra Police Station Shri Babubhai Gopalbhai was
present at the police station on 16.02.2017, at 13:15, he
was informed by the P.S.I. of Umra Police Station that
Surendra Ishwarlal Tamkhidas had given information at
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
police station for the property situated at village Vesu of
Revenue Survey No.209 (New Survey No.111/3) in the
custody and possession of police that some persons are
trying to erect iron angle upon the said property, and
informed the complainant to go the place of incident
along with son of Surendra Iswarlal.
10.2 It is alleged by the complainant that when he
along with son of Surendra Ishwarlal, reached at the
place of incident, he saw iron angles placed upon the
subject property and found six to seven persons present
there. It is alleged that as the disputes were going on
between the accused and Surendrakumar Ishwarlal, and
Surendrakumar Ishwarlal had preferred Special Criminal
Application No.1506 of 2012, wherein the order was
passed of taking over the possession of subject property
with Umra Police Station, pursuant to which the Police
Inspector of Umra Police Station had carried out
procedure under section 145 of the Cr.P.C. and carried
out panchnama on 14.05.2012, and possession of the
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
subject property was taken over by Umra Police Station.
It is alleged that the present applicant and some unknown
persons had tried to trespass the subject property by
putting iron angle.
10.3 It is stated by the complainant in the FIR that
the possession of the subject property is with Police
Inspector of Umra Police Station, pursuant to the order
passed by this Court and there is no order by the High
Court or any Civil Court to give back the possession and
knowing that the possession is with police, the applicant
or some aides of applicant or some unknown persons
illegally entered upon the subject land and erected iron
angles and have committed breach of order of this Court,
and thereby committed offence.
10.4 F.I.R. being C.R. No.I-45 of 2016 was filed
on the premise that the accused, referred therein, had
tried to erect iron angle alleging that they had tried to
illegally enter upon the subject land. Whether the persons
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
named in the FIR had the authority, at the said relevant
time, to enter upon the land, would be question of fact,
and, at the said relevant time, the police was in
possession of the property. The FIR is against Minu
Darabshah @ Dali Patel and other unknown persons. The
FIR came to be filed by A.S.I. Babubhai Gopalbhai on the
information given by Surendra Ishwarlal Tamkhidas,
where the A.S.I. along with son of Surendra Ishwarlal
Tamkhidas had visited the place and had seen six to
seven person present at the disputed land. It is strange to
note that though six to seven persons were found present
by the A.S.I., he had failed to inquire from them about
their names and residence. None of them had been
named in the F.I.R. The fact reflected in the FIR is about
the Special Criminal Application No.1506 of 2012 filed by
Surendra Ishwarlal Tamkhidas, and by an order of this
Court, the possession of the property was given to the
police, and accordingly the then Police Inspector Shree
Umra, initiated the proceedings under section 145 of the
Cr.P.C. on panchnama dated 14.05.2012, and had taken
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
the possession of the property.
10.5 It is to be noted that though the possession was
with the police, the police failed to protect the same from
such unknown persons. The police noted in the FIR that
there is no order from the Civil Court of handing over the
possession of the property to Minu Darabshah @ Dali
Patel or to his man; in spite of that, by illegally
trespassing, they had placed iron angles.
10.6 The order of Civil Court below Exhibit-5 in
Special Civil Suit No.316 of 2002, is dated 06.05.2006.
The panchanma handing over the possession of the
disputed property to the police is dated 14.05.2012. The
rigmarole of the proceedings between the parties before
the revenue authority and the District Magistrate and
even before the Civil Court has prolonged the resolution
of the actual dispute between the parties, where in the
order dated 08.09.2017 in Special Criminal Application
(Quashing) No.7677 of 2016, the facts were brought to
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
the notice of the Court about restoration of the Special
Civil Suit No.316 of 2002, where the issues had already
been framed long time back, and the Court was required
to commence with recording of the oral evidence, and the
parties were directed to co-operate the Court concerned
for effective and expeditious disposal of the Civil Suit.
11. In case of Rajeshbhai Muljibhai Patel Vs. State
of Gujarat (supra), the Hon'ble Apex Court while
considering the receipts filed in the Suit and it sent to the
handwriting expert, and when handwriting expert had
opined that the signatures did not tally with the sample
signatures, having observed that the issues regarding the
genuineness of the receipts pending in the Civil Suit, the
Hon'ble Apex Court came to the conclusion that the FIR
ought not have been allowed to continue, as it would
prejudice the interest of the parties and the stand taken
by them in the civil suit. Though, the opinion of the
handwriting expert is relevant piece of evidence in terms
of section 45 of the Indian Evidence Act. It was noted
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
that, it was not a conclusive evidence and always open to
the parties to adduce appropriate evidence to disprove
the opinion of the handwriting expert. Further, section 73
of the Indian Evidence Act empowers the Court to
compare the admitted and disputed writings for the
purpose of forming its own opinion.
11.1 Here, in this case, the learned Civil Judge while
deciding Exhibit-5, has given the prima facie observation
with regard to the disputed document. Now, the parties
to the suit would be required to adduce evidence, so that
the disputes get resolve and the parties do not get
enrolled in the criminal proceedings.
11.2 In the case of Indian Oil Corporation Vs.
NECP India Ltd., reported in (2006) (6) SCC 736, the
Hon'ble Apex Court while referring to the jurisdiction
under Section 482 of the Cr.P.C. has laid down principles
for the parties for quashing of the criminal proceedings,
which reads as under :-
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
"It is to seen if a matter, which is
essentially of civil nature, has been given
a cloak of criminal offence. Criminal
proceedings are not a short cut of other
remedies available in law. Before issuing
process a criminal court has to exercise
a great deal of caution. For the accused
it is a serious matter. This Court has laid
certain principles on the basis of which
High Court is to exercise its jurisdiction
under Section 482 of the Code,
Jurisdiction under this Section has to be
exercised to prevent abuse of the
process of any court or otherwise to
secure the ends of justice.
11.3 The Apex Court in case of G. Sagar Suri v.
State of Uttar Pradesh reported in (2000) 2 SCC 636,
observed that the Supreme Court has laid certain
principles on the basis of which the High Court is to
exercise its jurisdiction under Section 482 of the Code. It
has been held that jurisdiction under this section has to
be exercised to prevent abuse of the process of any court
or otherwise to secure the ends of justice. Merely
because the accused persons had already filed an
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
application in the Court of Additional Judicial Magistrate
for their discharge, it cannot be urged that the High
Court cannot exercise its jurisdiction under Section 482
of the Code. Though the Magistrate trying a case has
jurisdiction to discharge the accused at any stage of the
trial if he considers the charge to be groundless but that
does not mean that the accused cannot approach the
High Court under Section 482 of the Code or Article 227
of the Constitution to have the proceeding quashed
against them when no offence has been made out against
them and still why must they undergo the agony of a
criminal trial.
11.4 Here, in this case too, there are two divergent
versions of both the contesting parties with regard to the
suit land regarding agreement of sale and the possession
of land. The revenue proceedings are referred back for
reconsideration, while civil proceedings, though, issues
have been framed, Special Civil Suit No.316/2002 has yet
not concluded, and the complainant, thus, press upon the
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
proceedings of FIR being C.R. No.I-215/2017 and FIR
being C.R. No.I-45/2016, which have been subsequently
raised, when the dispute, which has been raised in C.R.
No.I-215/2017, was already at large before the Civil
Court.
11.5 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. It is neither possible
nor desirable to lay down any inflexible rule, which would
govern the exercise of inherent jurisdiction, and no
legislative enactment dealing with procedure can provide
for all cases that may possibly arise, and the courts,
therefore, have inherent powers apart from express
provisions of law which are necessary for proper
discharge of functions and duties imposed upon them by
law. All courts whether civil or criminal possess, in
absence of any express provision, as inherent in their
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
constitution, all such powers as are necessary to do the
right and to undo a wrong in the course of administration
of justice on the principle quando lex aliquid alicui
concedit, concedere videtur id sine quo res ipsa esse non
potest (when the law gives a person anything, it gives him
that without which it cannot exist). 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 in
the section itself.
11.6 This Court, in the present matters, finds that
permitting to continue the FIRs would prejudice the
interest of the parties and also ultimately affect the
proceedings before the Civil Court.
12. The order passed by the Additional Sessions
Judge handing over the possession to the applicant i.e.
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
complainant to the matters is erroneous on the face of the
record, where the learned Civil Judge has believed the
possession of plaintiffs to the suit. Thus, the order dated
08.01.2018 passed by the 2nd Additional Sessions Judge,
Surat below Exhibit-34 in Criminal Misc. Application
No.3360 of 2015, impugned in Special Criminal
application No.679 of 2018, is quashed and set aside.
13. This Court does not find any cause to direct
the Investigating Officer. The method to be adopted for
seeking FSL report on the document, whether such
opinion can be expressed on the laminated document or
not, is for the FSL authority to decide. Hence, this Court
finds no reason to entertain the Criminal Misc.
Application (Direction) No.1 of 2018 in Special Criminal
Application No.6429 of 2017. Hence, the same stands
disposed of.
14. In view of the above, FIR being C.R. No.I-
215/2017 registered before the Umra Police Station,
R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023
Surat City and FIR being C.R. No.I-45/2016 registered
with Umra Police Station, Surat are quashed and set
aside.
(GITA GOPI,J)
Pankaj
