Pathan Ferozkhan Alafkhan vs State Of Gujarat
2023 Latest Caselaw 5756 Guj

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     R/SCR.A/9343/2021                                         ORDER DATED: 08/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 9343 of 2021

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                         PATHAN FEROZKHAN ALAFKHAN
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR. RUSHANG D MEHTA(6989) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4,5,6
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1 - State
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 08/08/2023

                                       ORAL ORDER

1. Challenge in this application is made by the

applicant under Articles 226/227 of the Constitution of India

to the impugned judgment and order dated 30.07.2021 passed

by the learned 6 th Additional Sessions Judge, Mehsana in

Criminal Revision Application No.69 of 2019, whereby the

Sessions Court, being a Revisional Court, has rejected the

application and confirmed the order dated 06.08.2019 passed

by the learned trial Court i.e. Additional Chief Judicial

Magistrate, Kadi in Criminal Inquiry No.23 of 2012, whereby

the learned trail Court has rejected the application under

Section 203 of the Code of Criminal Procedure, 1973, which

was for lodging the complaint against the present respondents

No.2 to 6 under Sections 427, 447 and 120B of the Indian

Penal Code.

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2. The brief facts of the present case are as under :

2.1 That allegedly, the applicant has encroached the

Government land and since the Nagarpalika has removed

such illegal encroachment, the applicant has raised his

grievance against the officers and office bearers of the

Nagarpalika concerned at the relevant point of time.

2.2 Hence, the applicant has made a complaint before

the learned trial Court against the applicants for the offences

as noted above and it has culminated into Criminal Inquiry

Case No.23 of 2021, wherein the learned trail Court has

directed the police authority under Section 202 of the Code

to submit report. The police authority has produced the

report and the learned trial Court has, vide impugned order

dated 06.08.2019, rejected the Criminal Inquiry No.23 of

2012.

2.3 Being aggrieved, the applicant has approached the

learned Sessions Court by filing Criminal Revision Application

No.69 of 2019 and the learned 6 th Additional Sessions Judge,

Mehsana vide judgment and order dated 30.07.2021 rejected

the said application and confirmed the order passed by the

learned trial Court.

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2.4 Hence, this application with concurrent findings of

both the learned Courts below.

3. Heard learned advocates.

4. Learned advocate Mr.Mehta for the applicant has

submitted that the applicant was occupying the shop since

1998 and was paying the municipal taxes. He has submitted

that the applicant was having the registration under the

Shops and Establishment Act. He has submitted that there

are other shops in the lane and only one shop of the

applicant was demolished by the Nagarpalika. He has

submitted that no summons under Section 160 of the Code

was served to the applicant. He has submitted that the

applicant has therefore, given a complaint before the learned

trial Court and the learned trial Court has directed the

concerned police authority to submit the report under Section

202 of the Code, however, the police authority did not make

any inquiry till 2019. He has submitted that from the record

received under the Right to Information Act, it is crystal

clear that the respondents have committed an offence as

alleged in the complaint. He has submitted that as the

applicant is a political leader of opposition party, the

respondents have demolished his shop being a ruling party.

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He has submitted that they have kept grudge against the

applicant politically and thereby committed an offence in

question. He has submitted that the learned Courts below

have erroneously rejected the application of the applicant. He

has submitted that the learned Courts below have not

appreciated the facts and evidence produced by the applicant

on record. He has submitted that the applicant has submitted

an application Exh.8 before the learned Revisional Court and

raised his grievance and without adjudication of that

application, the learned Revisional Court has decided the

main revision, which is an error on the part of the learned

Revisional Court. He has submitted that therefore, this

matter may be remanded back to the learned Revisional

Court concerned for fresh adjudication. He has submitted that

this application may be allowed by exercising the inherent

powers under Article 226/227 of the Constitution of India in

favour of the applicant.

5. Per contra, learned APP for the State has

submitted that the learned Courts below have not committed

any error which requires interference by this Court. He has

submitted that the applicant has never produced documents

of ownership of the shop in question and therefore, the

Nagarpalika has demolished it. He has submitted that the

authority concerned has acted in accordance with law and

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there is no error committed by the authority concerned. He

has submitted that the applicant has never supported the

police authority in the inquiry proceedings. He has submitted

that the applicant has made wrong and false allegations upon

the officers of the Nagarpalika. He has submitted that the

concerned authority have published public notice in the

newspaper before one month and thereafter the authority has

demolished the illegal construction, which are on the

government land. He has submitted that the applicant has

encroached the government land, which is removed by the

authority in accordance with law. He has submitted that the

applicant has argued the main revision and after hearing

the parties, the learned Revisional Court has finally

adjudicated the application. He has submitted that the

applicant has never raised any grievance before the learned

Revisional Court that before adjudication of main matter, his

application Exh.8 be decided first. He has submitted that in

peculiar facts of this case, this Court should not exercise the

powers under Articles 226/227 of the Constitution of India in

favour of the applicant. He has submitted that this

application may be dismissed.

6.1 I have heard rival submissions made by the

learned advocates for the respective parties. I have perused

the documents available on record. From the record, the

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following are the undisputed facts :

 The applicant is a political leader.

 No document of ownership of the shop in question was

produced by the applicant before the learned Courts

below.

 There is no evidence of any loss to the applicant during

the demolition, as alleged.

 The applicant has not supported in the inquiry

proceedings, as ordered by the learned trial Court under

Section 202 of the Code.

 The Nagarpalika has published notice in the newspaper

before one month from the alleged incident.

 Respondents No.2 to 6 are the officer bearers of the

Nagarpalika.

 They have acted in accordance with law.

 The notice was also pasted at the place of incident.

6.2 In view of above undisputed facts as well as

considering the documents on record, the following points are

weighed with this Court for consideration :

 The alleged incident is of the year 2012.

 The applicant has filed an application before the learned

trial Court directly and the learned trial Court has

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directed the concerned police authority under Section

202 of the Code to submit the report after inquiry.

 The police authority has submitted its report before the

learned trial Court in Criminal Inquiry Case No.23 of

2012 stating that the applicant is not cooperating the

inquiry proceedings.

 Considering the report submitted by the police authority,

the learned trial Court has, vide order impugned dated

06.08.2019, rejected the application of the applicant, by

observing that the applicant has not produced any

document regarding the ownership of the shop/land in

question nor has cooperated the inquiry proceedings.

 The trial Court has also observed that the Nagarpalika

has called for the opinion of the land in question from

the various authorities, where all the authorities have

clearly opined that the land in question is the

government land and there was an encroachment by the

applicant.

 The Nagarpalika has issued public notice in the

newspaper in advance before more than one month.

 The land in question is the government land which is

encroached by the applicant.

 The applicant has produced his written arguments for

the revision application at Exh.7 on 25.02.2020 and

thereafter on 19.03.2020, he has submitted an

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application at Exh.8 for producing additional documents

which he could find from his house later on. Further,

from record it transpires, that the learned Revisional

Court has heard both the learned advocates for the

respective parties at length and adjudicated the revision

application, on merits. At that time, the applicant has

not taken any objection before the learned Revisional

Court during the course of arguments and now, the

applicant has contended to remand the matter back to

the learned Revisional Court at this stage, is nothing

but the dilatory tactic, which is not permissible.

 The learned Revisional Court below has also confirmed

the order of the learned trial Court, after considering

the material available on record.

 There are concurrent findings of the Courts below.

 The learned Courts below have not committed any

error, which requires interference by this Court.

7. In view of above peculiar facts and circumstances

of the case as well as the concurrent findings of the learned

Courts below, this application needs to be dismissed and is

dismissed accordingly.

(SANDEEP N. BHATT,J) M.H. DAVE