Hansaben D/O Bachuji Shivaji And ... vs State Of Gujarat
2023 Latest Caselaw 6319 Guj

                                                                                             NEUTRAL CITATION




     R/SCR.A/9251/2021                                         ORDER DATED: 29/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 9251 of 2021

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     HANSABEN D/O BACHUJI SHIVAJI AND W/O BABUBHAI THAKOR
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR KISHAN R CHAKWAWALA(9846) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 2,3,4,5
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 29/08/2023
                                 ORAL ORDER

1. The present petition is filed for seeking following

reliefs:

"A. Be pleased to allow this petition;

B. Be pleased to issue a Writ of Mandamus or any

other appropriate Writ, Order or direction in the nature

to hold the action of respondent no. 3 and 4 to be

illegal, mala fide and initiated with ulterior motive, and

further be pleased to quash and set aside the notices

issued by respondent no. 3 and 4 produced vide

Annexure-A Colly;

C. Pending hearing and final disposal of this petition,

be pleased to restrain respondent no. 3 and 4 to act

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further pursuant to notices issued by them and stay

the same vide Annexure-A colly;

D. Be pleased to issue direction upon the Respondent

no. 2 and 5 to hold inquiry against the respondent no

3 and 4 who have illegally indulged in matter of more

than 28 years old where learned Civil Court at

Mirzapur, Ahmedabad Rural is the custodian of the

records where civil rights are yet to be decided by the

same court and further upon finding guilty, they may

be dealt with strictly in accordance with law with a

view to save others from their illegal exercise of powers

and to set precedent in the society;

E. Be pleased to impose exemplary cost upon the

respondent no.3 and 4 to be bear by them from their

own pocket and the same may be awarded to the

present petitioners;

F. Be pleased to grant such other and further relief.

which deem fit and proper in the interest of justice."

2. Brief facts as per the case of the petitioners in this

petition are as such that the present petitioners are

legal heirs and close relatives of deceased Khodaji

Shivaji. The deceased was owning various agricultural

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land and other properties in his name and he passed

away in the year 2009 after executing a registered Will

in the year 2006 before the Sub-Registrar. Since the

deceased - Khodaji was not having any issue out of his

wedlock, he resided with the petitioner's family i.e.

nephews until his last breath.

2.2. It is further the case of the petitioners in this

petition that during the lifetime of the deceased Khodaji,

certain civil proceedings were initiated by some parties

pertaining to land bearing Survey No. 988 of village

Vejalpur which is now new Survey No. 315. That

pending these proceedings, Khodaji passed away in the

year 2009. It is pertinent to note that during the entire life span of deceased Khodaji, except the petitioners and

their families, no one had come forward even at the

time of death of Khodaji and thereafter also, but after

lapse of 3 years of death of deceased Khodaji, all of a

sudden one Shakriben came forward claiming herself to

be a legal heir as well as a daughter of deceased

Khodaji. Surprisingly she made an application in a

pending proceeding of Civil Suit No. 622 of 1992 in the

year 2012 and sought prayer to be joined as legal heir

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of the deceased Khodaji. It is further the case of the

petitioners in this petition that after 2 years of the said

proceedings, she (Shakriben) withdrew the said

application from the Hon'ble Court by stating that under

some misconception the said application was filed and

that she is not the legal heir of deceased Khodaji,

therefore the application was sought to be withdrawn by

Shakriben herself. It is further the case of the

petitioners in this petition that again after lapse of some

more years, she (Shakriben) came forward again and

tried to get the said application restored by narrating

false and frivolous pleadings. The learned civil court was

pleased to reject the said application after recording

reasons in detail.

2.3 It is further the case of the petitioners in this

petition that surprisingly once again she (Shakriben)

came forward with a new application in form of a

Review Application and requested the learned civil court

to reconsider her request. It is further the case of the

petitioners in this petition that as the said Shakriben

has played foul with the learned civil Court and abused

the process of law, the present petitioners have moved

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an application before the learned civil court to initiate

proceedings under section 340 of Code of Criminal

Procedure, 1973. It is submitted that these events took

place uptil the midst of the month of August, 2021. At

this juncture, the said Shakriben has diverted her focus

and with the help of some known and high handed

persons, approached the present respondent no. 3 at first

point of time, ignoring the regular process. The

respondent no. 3 issued notice to one of the petitioner's

son vide notice dated 16-08-2021 and called upon to give

statement pertaining to the land bearing survey no. 988

of village Vejalpur without indicating details. The

Respondent no. 3 has again issued notice to another

petitioner on 21-08-2021 and compelled her to remain present to give 7 statement.

2.4 It is further the case of the petitioners in this

petition that pursuant to the said notices, the petitioners

have issued notice of intimation through their advocate

on 26-08-2021 along with complete documentary details

as well as present status of matter and requested to

restrain himself in such a unique matter where civil

court is the custodian of the case and its records since

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last 28 years. That the said notice may be treated as

part and parcel of the pleadings of this Petition. It is

further the case of the petitioners in this petition that

at that time, the said Shakriben had bypassed the

regular process of moving application to the concern

authority/local police station and directly approached the

office of Respondent no. 3 to 5 which smells of

something which is not desirable to state in black and

white. However, it can be gathered from the entire

episode which has been described in the present petition

and hence the present petition is filed to prevent the

mis-use of police powers under the garb of CID Crime in

a matter which is pending before the Learned Civil

Court at Mirzapur, Ahmedabad Rural since 1992.

2.5 It is further the case of the petitioners in this

petition that after receipt of the said notice of intimation

from the advocate of the petitioners, now the respondent

no. 4 has entered into this episode and he has started

issuing notice to the third petitioner on 08.09.2021 and

called upon her to remain present to give statement

pursuant to land bearing Survey No. 988 of village

Vejalpur under the garb of CID Crime, Fraud Cell. At

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this juncture, it is to be stated that respondent no. 3

and 4 are conducting simultaneous inquiry. It is further

the case of the petitioners in this petition that in this

backdrop, the Respondent no. 3 and 4 has adopted

unethical approach which can be described as mis-use of

police powers under the garb of office of CID Crime and

pick and choose/selected the case from the court of

Learned Civil Court, Mirzapur, Ahmedabad Rural, which

is pending since 1992 for its adjudication. It is the case

where it appears that the respondent no. 3 and 4 have

invited application from the so called complainant and

picked up the case by ignoring or relegating the

complainant to approach local police station having

territorial jurisdiction. The Respondent no. 2 and 5 have been joined in the present proceedings so as to point out

the facts that how their sub-ordinate officers are

encroaching the pending Civil Proceedings of the court of

law and are harassing innocent citizens with mala fide

intention and oblique motive to those who have knock

the doors of justice under the police powers and uniform.

Hence the present petition is preferred.

3. Heard learned advocate Mr. Kishan Chakwawala for

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the petitioners and Mr. Dhwana Jayswal, learned

Additional Public Prosecutor (APP) for the respondent -

State.

4.1 Learned advocate Mr. Kishan Chakwawala,

representing the petitioners, has drawn my attention to

the prayers made in the present petition. He has

submitted that respondent Nos. 3 and 4, against whom

allegations have been made by the complainant, serve as

the Investigating Officers in this case. Therefore, as a

matter of propriety, it is advisable that the investigation

not be conducted by these officers to avoid any potential

bias or prejudice, in accordance with the principles of

impartiality. Furthermore, he has pointed out that it is peculiar that, despite the absence of territorial

jurisdiction, the C.I.D. Crime has accepted the complaint

from the complainant and initiated the

investigation/inquiry into the matter.

4.2 He has also brought to my attention a

communication dated August 21, 2021, received from the

Deputy Superintendent of Police, C.I.D. Crime, which

discloses that the notice has been issued for recording

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statements from petitioner Nos. 1 to 3.

4.3 Moreover, he has drawn my attention to the various

documents submitted as evidence. He emphasized that

the disputed land in question has become highly valuable

over time. The Will in question was executed by the

individual, who was the owner of the land at that

particular time. Subsequently, several civil proceedings

were initiated, and currently, a civil proceeding is still

pending for consideration before a higher authority.

Consequently, he has argued that at its core, this

dispute pertains to the rights of the involved parties, a

matter of a civil nature that is being coloured with a

criminal texture. Therefore, he has contended that, given the manner in which the investigation has been

conducted, especially by respondent Nos. 3 & 4, he is

concerned that a fair investigation may not ensue.

Consequently, he believes that his right to a fair

investigation is at risk of being compromised.

4.4 He has relied on the judgment of the Hon'ble Apex

Court in the case of R. Nagendra Yadav versus The

State of Telangana reported in (2023) 2 SCC 195, more

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specifically, paragraphs 14 and 17 are relevant. He has

also relied on the judgment of Madras High Court in the

case of A.V. Bellarmin versus Mr. V. Santhakumaran

Nair reported in Crl. O.P. (MD) No.12212 of 2013 dated

13.8.2015, more specifically, paragraph 13 is relevant. He

contends that, given the aspects raised in the present

petition and those highlighted during the course of the

argument, especially considering the conduct of the

complainant, the prayers presented in the present

petitioner's case should be taken into consideration.

4.5 Nevertheless, he has clarified that he is presenting

arguments solely on behalf of petitioner No. 3. Although

he filed the present petition on behalf of all the petitioners, his instructions are limited to advocating for

petitioner No. 3. Despite his request to the Court to

consider his arguments exclusively for petitioner No. 3,

the Court has chosen to consider his arguments on

behalf of all the petitioners. As there is no note or

pursis for withdrawal of his appearance, which is

required under the provisions of the Gujarat High Court

Rules, this Court cannot permit him to withdraw his

appearance for any of the petitioners. It's important to

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note that the present petition was jointly filed by

petitioner Nos. 1 to 3, and the advocate representing the

petitioners had initially filed his appearance for all the

petitioners.

5.1 Conversely, Mr. Dhwana Jayswal, the learned

Additional Public Prosecutor (APP) representing the

respondent State, has informed the Court that his officer

is present today. He has also produced the relevant

investigation documents carried out by the officers.

Initially, he expressed that his office has no objection to

transferring the investigation to different officers other

than those currently handling it. However, he

concurrently argued that the allegations made by the complainant appear to be an attempt to demoralize the

officers conducting the investigation into the complaint.

The complainant alleges that fraud has been committed

by the advocates who represented her case in the

concerned Court, and advocates for the opposing party

have also played a significant role in infringing upon her

rights regarding the property in question. As a result, he

has clarified that the inquiry was initiated based on the

complaint received from the complainant, a widow and

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the spouse of an Assistant General of Police (AGP) at

C.I.D. Crime. According to the complainant, other police

authorities did not show interest in registering or

accepting her complaint. Therefore, an inquiry was

launched following the complaint from the widow, and

subsequently, the communication dated August 21, 2021,

was sent to the present petitioner.

5.2 Furthermore, Mr. Jayswal has argued that during

the course of the investigation, petitioner No. 1 has

recorded the statement before the Investigating Officer.

Additionally, a doctor who is associated with the Will in

question has also recorded his statement. These

statements are part of the official record, along with the recorded statement of the complainant made by the

relevant authority. Furthermore, Mr. Jayswal has argued

that the advocate representing the present petitioners has

displayed a personal interest in the matter, suggesting

possible personal involvement related to the property in

question. He contended that petitioner No.1's statement

itself demonstrates the extent to which actions were

influenced by the concerned advocate. Moreover, he

pointed out that the doctor's statement implies doubts

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about the authenticity of the Will in question.

5.3 Taking into account the nature of the dispute

outlined in the present petition, Mr. Jayswal stressed the

importance of conducting a thorough investigation into

the complaint submitted by the complainant.

Consequently, he has requested that the present petition

should be dismissed, and he recommends imposing heavy

costs on the petitioner, specifically petitioner No. 3.

6.1 I have considered the rival submissions made at the

bar by the respective parties. I have perused the

recorded available on record. I have also considered the

manner in which the present petition is filed. It appears that the petitioners received communication from the

Deputy Superintendent of Police (Dy.S.P.) on August 21,

2021. Following this communication, the petitioners

submitted documents to the relevant authority by mailing

them via postal services

6.2 It also becomes evident that there have been

several civil suits filed between the parties involved.

Furthermore, it is noteworthy that petitioner No.3 has

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previously lodged complaints before filing the present

complaint against the petitioners. Furthermore, it

becomes apparent that the dispute primarily falls within

the realm of civil matters. However, there are some

peculiar and suspicious elements that have emerged from

the statements of individuals, who deposed before the

Investigating Officers, as well as from the documents

available on record. These elements raise questions about

the intentions of petitioner No. 3. While the present

petition appears to be filed under the pretext of seeking

a fair investigation, and to some extent, the prayers

made in the petition do seem legitimate, it is worth

noting that the C.I.D. Crime initiated an inquiry based

on a complaint received from the complainant, without formally registering any offence at the local Police

Station. Additionally, it is important to consider the

conduct and actions of the petitioners, especially the

initial filing of the present petition by petitioner Nos. 1

to 3, with the prayers outlined therein.

6.3 Thereafter, when the matter is called out yesterday,

the learned advocate for the petitioners has submitted

that he is arguing the matter for only petitioner No.3

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and for the petitioner Nos.1 & 2, he is not arguing the

matter. The matter is kept today for taking further

instructions with specific understanding that whether he

wants to withdraw this petition or to proceed with the

hearing of the matter.

6.4 However, when the matter was called today, the

Court pointed out that the Court cannot permit him to

argue exclusively for petitioner No.3, especially

considering that he had filed his appearance for all the

petitioners. The Court emphasized that without

withdrawing his appearance for petitioner Nos. 1 & 2 by

following procedure, it is improper to assert during the

argument that the advocate is not representing petitioner Nos. 1 & 2. It was clarified that, once a Vakalatnama is

filed for all the petitioners, the advocate cannot

unilaterally withdraw representation without following the

proper procedure and without obtaining the Court's

permission. This conduct of advocate, prima facie, raises

concerns about the advocate's professional misconduct.

Petitioner Nos.1 & 2 have also entrusted the matter to

him by engaging him as counsel, and during the

argument, he expressed unwillingness to represent

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petitioner Nos. 1 & 2 without following the prescribed

procedures under the Gujarat High Court Rules or any

relevant provisions of the law and thus, this can be said

as failure to discharge his duty as an advocate for the

petitioner Nos.1 & 2 and also towards the Hon'ble Court.

This Court expects more ethical behaviour from learned

advocate Mr. Kishan Chakwawala, representing the

petitioners, in future.

6.5 Furthermore, when I consider the factual aspects of

the matter, it becomes evident that the precedent cited

by the learned advocate for the petitioners is binding

on this Court. It leaves no room for doubt that a proper

and impartial investigation should be conducted by the relevant authorities. Considering the fact of the present

case, I am of the opinion that though they have carried

out investigation in fair and reasonable manner so far,

the allegations are levelled against the officers of the

C.I.D. - respondent Nos.3 & 4, and therefore, it cannot

be said that merely because the complaint is made

before the C.I.D. Crime, that factor itself is considered

as suspicious. Therefore, the officers who are carried out

the investigation are to be considered as bias.

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6.6 Prima facie, from the perusal of the material

available on the record, it appears that all the

documents submitted have been duly accepted and

incorporated into the Investigating Agency's records.

Furthermore, statements from petitioner No.1 and the

relevant doctor have also been recorded. Hence, based on

this preliminary assessment of the investigative material,

it may not be necessary to entertain and consider the

prayers made in the present petition, as petition is an

attempt to pressurize the Investigating Agency.

6.7 However, in view of the expressed willingness of the

officers concerned to transfer the investigation to another

officer or officer(s), it is appropriate to direct respondent No. 5 - the Competent Authority concerned, to consider

aspect for changing the investigating officer. This shall

be done after duly recognizing and appreciating the

efforts put forth by respondent Nos. 3 & 4, who have

carried out investigation thus far.

6.8 It is expected that the present petitioners shall co-

operate in the process of investigation and the

inquiry/investigation pursuant to the impugned complaint

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shall be completed as expeditiously as possible, preferably

within three months from today and shall come to the

logical conclusion after proper investigation.

6.9 Though prayers made in the present petition are

not considered on merits, but with a view to consider

the aspect of fairness of investigation and in view of the

willingness shown by the respondent Nos.3 & 4 in the

present matter, respondent No.5 is directed to consider

the aspect about change the officer for carrying out

further investigation, as expeditiously as possible,

preferably within a week from today.

7. Accordingly, the present petition is dismissed.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA