Gujarat High Court
Sureshchandra Narayanshankar ... vs State Of Gujarat on 2 February, 2023
Bench: Gita Gopi
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20564 of 2013
With
R/SPECIAL CRIMINAL APPLICATION NO. 3935 of 2013
With
R/CRIMINAL MISC.APPLICATION NO. 11027 of 2014
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SURESHCHANDRA NARAYANSHANKAR ACHARYA & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR CHETAN K PANDYA(1973) for the Applicant(s) No. 1,2
MR SK PATEL(654) for the Respondent(s) No. 2
MR HARDIK MEHTA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 02/02/2023
COMMON ORAL ORDER
1. Criminal Miscellaneous Application No.20564 of 2013
has been filed by the applicants - Sureshchandra
Narayanshankar Acharya and Tejas Sureshchandra
Acharya under Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to in short as
'Cr.P.C.") for quashing and setting aside the First
Information Report (FIR) bearing I-C.R. No.92 of 2013
registered with Adalaj Police Station, Gandhinagar for
the offences punishable under Sections 323, 337, 427,
504 and 114 of the Indian Penal Code and Section
135 of the Bombay Police Act and the proceedings
initiated in pursuant thereto.
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
2. Special Criminal Application No.3935 of 2013 has
been filed by the applicants - Sureshchandra
Narayanshankar Acharya and Tejas Sureshchandra
Acharya under Section 482 and 483 of the Cr.P.C. for
directing further investigation under Section 173(8) of
the Cr.P.C. by superior authority not below the rank
of Deputy Superintendent of Police, praying for
investigation in a fair manner to unearth the
collusion between the Investigating Officer and the
accused of the FIR bearing II-C.R. No.287 of 2013
registered with Adalaj Police Station, Gandhinagar by
invoking appropriate Sections of the Indian Penal
Code and further to take actions against respondent
No.3.
3. Criminal Miscellaneous Application No.11027 of 2014
has been filed by the applicant - Pankajbhai
Amrtubhai Patel under Section 482 of the Code of
Criminal Procedure, 1973 for quashing and setting
aside the First Information Report bearing II-C.R.
No.287 of 2013 registered with Adalaj Police Station,
Gandhinagar for the offences punishable under
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
Sections 323, 504, 427 and 114 of the Indian Penal
Code and under Section 135 of the Bombay Police
Act and the proceedings initiated in pursuant thereto.
Learned Advocate Mr. S.K. Patel represents the
applicant herein.
4. The complaint is filed by the respondent No.2 stating
that he owns a Tractor No.GJ-1-LQ-7883 to use for
agricultural purpose and that hold an agricultural
property in the outskirts of Village Amiyapur, District
Gandhinagar bearing Survey No.61/1. On the date of
the First Information Report at about 5.30 in the
evening, while applicants/accused had gone to the
agricultural land the complainant with the said
Tractor and his labourer Subhdas were tilling the
land, at that time the applicants had gone near him
and had questioned him as to why he was tilling the
agricultural land of their ownership. It is alleged
that the applicants accused got excited and started
abusing him to which the complainant asked the
accused not to do so. It is further alleged that the
accused threw stones, the complainant flinched and
thus the complainant received injuries only on the
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
right hand palm. Thereafter, he alighted from the
tractor and it is alleged that both the applicant-
accused had come near him and had caught hold of
his neck and had a fight during which the gold chain
of the complainant got broken.
5. It is submitted by learned Advocate Mr. Chetan K.
Pandya that the applicant No.1 had purchased the
land bearing Survey No.61/1 of Village Amiyapur in
the year 1980 from its owner - Thakore Amarsang
Lalluji and had paid full sale consideration.
However, the Sale Deed could not be executed on
account of the Land Ceiling Act. However, the
Agreement to Sell was executed in favour of the
applicant No.1 and the receipt was issued by the land
owner. It is submitted that it is clear that full
payment was made towards the sale consideration. It
is also submitted that Tenancy Case was instituted
under Sections 43 and 63 of the Gujarat Tenancy
Agricultural Land Act, 1948. The applicant No.1 was
found to be in possession of the land bearing Survey
No.61/1 admeasuring 1 acre and 4 gunthas. Since
the landlord - Thakore Amarsang Lalluji expired in
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
the year 1997-1998, his daughter Jivatben executed a
Sale Deed dated 04.11.2009 in favour of one -
Rameshbhai Bulchand Ambvani. It is submitted that
as soon as the applicant No.1 came to know about
the Sale Deed, Special Civil Suit No.155 of 2010 was
filed before the Court of the learned Senior Civil
Judge at Gandhinagar against Jivatben, daughter of
Thakore Amarsang Lalluji and Rameshbhai Bulchand
Ambvani. Learned Advocate Mr. Chetan K. Pandya
submits that the Court Commissioner's Report reflects
the possession of the applicant No.1. It is also
submitted that Rameshbhai Bulchand Ambvani further
sold the property on 23.04.2010 to Amrutbhai
Margabhai Patel and Nandubhai Keshavlal Patel
during the pendency of the Regular Civil Suit No.155
of 2010. It is contended by learned Advocate Mr.
Pandya that the possession of the land was never
transferred to Jivatben and without following the due
process of law, the complainant has tried to
dispossess the applicant/s who had remained in
possession of the land under the Agreement of Sale.
6. Learned Advocate Mr. Chetan K. Pandya further
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
submits that since the purchasers - Amrutbhai
Margabhai Patel and Nandubhai Keshavlal Patel could
not get possession of the land, they attacked the
applicants with 10-12 people armed with deadly
weapons on 25.06.2013 and started destroying the
evidence of the possession of the applicants. It is
further submitted that the son of the applicant No.1
had taken photographs in his mobile regarding
evidence of destruction on the land. It is further
submitted that Amrutbhai's son had destroyed the
notice Board of the applicant No.1 put up on the
land, had driven his tractor intentionally and rashly
towards the applicant No.1. Thus, there was a
deliberate intention to kill the applicant No.1 and on
account of the deliberate act of the complainant, the
applicant No.1 had sustained deadly injury, suffered
fracture on the hip and also there was a major
surgery of knee replacement. The applicant No.2
was also attacked with a dharia by Keshavbhai
Margabhai Patel on his head, however, he survived
and who immediately contacted the Police Sub
Inspector of Adalaj Police Station, Gandhinagar and
sought for police help, to which it is submitted by
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learned Advocate Mr. Chetan K. Pandya that the
police's non-responsive reply was that let these
people do whatever they want and they would take
the FIR's of both of the parties later. It is also
submitted that inspite of repeated requests, the Police
Sub Inspector of Adalaj Police Station did not provide
any help immediately to restrain the aggressors.
7. Referring to the facts stated in Special Criminal
Application No.3935 of 2013, learned Advocate Mr.
Chetan K. Pandya has made a prayer for order of
direction of further investigation under Section 173(8)
of the Cr.P.C. by an officer not below the rank of
Deputy Superindent qua the FIR qua II-C.R. No.20 of
2013 registered with Adalaj Police Station,
Gandhinagar. It is submitted that this FIR is a
cross FIR of I-C.R. No.92 of 2013 registered with
Adalaj Police Station, Gandhinagar (In Criminal
Miscellaneous Application No.20564 of 2013.
8. The First Information Report bearing II-C.R. No.287
of 2013 registered with Adalaj Police Station,
Gandhinagar is filed under Sections 323, 504, 427
and 114 of the Indian Penal Code and under Section
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
135 of the Bombay Police Act. Pankaj Amrutbhai
Patel had also made a prayer for quashing the
impugned FIR under Section 482 of Cr.P.C. It is
submitted by learned Advocate Mr. Pandya that
though the applicant/s of Criminal Miscellaneous
Application No.20584 of 2014 had asked for police
help, the police did not visit them, they were
admitted in the hospital. The Incharge Constable of
Adalaj Police Station, Gandhinagar had taken the FIR
on 25.06.2013 wherein the allegations were levelled
by the applicants that Pankaj Amrutbhai Patel had
tried to run over his tractor on the applicants, and
his son was injured too. The applicant's signature
was taken on the FIR while no copy of the FIR was
provided, and as the applicants were under medical
treatment, they could not pursue with the First
Information Report and later on it came to their
knowledge that the investigating officer had made a
correction in the FIR by applying white ink and had
changed the sentence as noted in the FIR lowering
the intensity of the offence with a view to help the
accused. It is further submitted that one of the
accused had been shown as a Panch of the scene of
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
the offence. It is further submitted that the
statement of the applicant's wife and son were never
recorded by the police while the Certificate issued by
the General Hospital, Gandhinagar makes it crystal
clear that the applicant had given clear facts that
Pankaj Amrutbhai Patel had driven the tractor over
the applicants and thus, serious offences were
committed against the complainant and witnesses,
inspite of that, the FIR was registered only under
Sections 323, 427, 504 and 114 of the Indian Penal
Code and under Section 135 of the Bombay Police
Act. Thus, the prayer is made that evidences were
there in the form of photographs which clarified that
Pankaj Amrutbhai Patel had driven the Tractor on the
particular day as the accused was holding Dharia in
his hand and had given a dharia blow on the
applicant's neck. It is further submitted against other
panch witness Chhanaji Babaji Thakore, the applicants
had filed a FIR being I-C.R. No.327 of 1999 under
Sections 147, 148, 149, 325, 324, 323 and 504 of the
Indian Penal Code and he was convicted by the
judgment and award dated 06.09.2008 by learned
Judicial Magistrate First Class, Gandhinagar and
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
therefore, both the persons keeping enmity against
the applicant/s had performed the role of panchas in
the applicant's FIR to lower the gravity of the offence
and therefore, the direction is sought to be issued
against the Investigating Officer for further
investigation under Section 173(8) of Cr.P.C.
9. In Criminal Miscellaneous Application No.11207 of
2014, learned Advocate Mr. S.K. Patel appears for the
applicant therein - Pankaj Amrutbhai Patel. It is
submitted that the FIR impugned is a counter blast
against the FIR which has been lodged by the
applicant. It is submitted that the accused were
admittedly present on the land in dispute which is
not of their ownership and possession. It is
submitted that the applicants-accused of Criminal
Miscellaneous Application No.20564 of 2013 and
Special Criminal Application No.3935 of 2013 have no
regards for law, after having failed in all the civil
proceedings right up to the tenancy proceedings. The
Gujarat Revenue Tribunal, Ahmedabad vide order
dated 07.10.2009 in TEN/BA/295/2006 has passed the
final order in the revenue proceedings, it is thus
submitted that having failed the Tenancy proceedings,
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
the accused had filed the Special Civil Suit No.155 of
2010. It is submitted by learned Advocate Mr. S.K.
Patel that when the applicants were not declared as
tenants by the revenue authorities, the suit was filed
for specific performance of Agreement of Sale
claiming possession. It is further submitted by
learned Advocate Mr. S.K. Patel that the Injunction
application - Exhibit 5 in the Suit of the accused was
rejected on 06.04.2011 by the learned 4 th Additional
Senior Civil Judge, Gandhinagar. Against the order
below Exhibit 5, Civil Miscellaneous Appeal No.68 of
2011 was preferred before the learned Principal
District Judge, Gandhinagar wherein too learned
Advocate Mr. S.K. Patel submitted, that by an order
dated 27.06.2012, the learned Principal District Judge
confirmed the order dated 06.04.2011 below Exhibit 5
in Special Civil Suit No.155 of 2012. Inspite of this
fact on record and having remained unsuccessful,
with false facts and allegations, a complaint was
lodged on 26.06.2013, where learned Advocate Mr.
S.K. Patel states that the complainant or his family
members had no right to enter the land after the
order of the learned 4th Additional Senior Civil Judge,
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
Gandhinagar, which was confirmed by the District
Court. Referring to the provisions of Indian Penal
Code, it is submitted that the possession of the land
is affirmed and has received confirmation by the
orders of trial Court and District Court in the Special
Suits and even by the revenue proceedings.
Referring to the provisions of Section 97 of the
Indian Penal Code which is with regard to the right
of private defence of the body and of property,
learned Advocate Mr. S.K. Patel states that every
person has a right, subject to the restrictions
contained in Section 99, to defend (i) his own body,
and the body of any other person, against any
offence affecting the human body and (ii) the
property, whether movable or immovable, of himself
or of any other person, against any act which is an
offence falling under the definition of theft, robbery,
mischief or criminal tresspass, or which is an attempt
to commit theft, robbery, mischief or criminal tress-
pass. It is further stated that the complainant was
an illegal tress-passer, had entered the applicant's
land without any authority. The applicant being
owner by way of Sale Deed had right to protect his
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
land and thus, learned Advocate Mr. Patel submitted
that the FIR against the present applicant is required
to be quashed and set aside. It is further submitted
that the prayer of further investigation under Section
173(8) of the Cr.P.C. cannot be granted since it is the
provision that deals with the authority of the
Investigating Officer in case he obtains any further
evidence or document to investigate the offence and
no Court even can preclude him for taking further
steps in conducting appropriate investigation if
necessary. Here in this case, learned Advocate Mr.
S.K. Patel submits that the police would have no
authority even to take any cognizance of the matter
since the matter was sub-judice before the Civil Court
and the civil rights of the parties are to be concluded
on the basis of the evidence produced by the
contesting parties. It is also submitted that even the
police cannot go for further investigation since the
order below application - Exhibit 5 in the Suit of the
accused was rejected on 06.04.2011 by the learned 4 th
Additional Senior Civil Judge, Gandhinagar. Against
that order below under Exhibit 5, Civil Miscellaneous
Appeal No.68 of 2011 was preferred before the
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
learned Principal District Judge, Gandhinagar wherein
too learned Advocate Mr. S.K. Patel submitted that
by an order dated 27.06.2012, the learned Principal
District Judge confirmed the order dated 06.04.2011
below Exhibit 5 in Special Civil Suit No.155 of 2012
and therefore, the possession of the land is
confirmed. Learned Advocate Mr. S.K. Patel also
submits that the sections invoked in the FIR would
not be applicable to the applicant-accused, since the
very foundation of the complaint is on the basis of
false plea and contrary to the revenue entries and
judicial orders / orders passed by the Civil Court.
10. The order of Gujarat Revenue Tribunal,
Ahmedabad dated 07.10.2009 had dealt with the
tenancy issues and the claim has not been believed
by the Tribunal and as observed in the order that as
per the Report of the Circle Officer, the possession of
Sureshchandra Narayanshankar Acharya was not
believed.
11. Learned Additional Public Prosecutor Mr. Hardik
Mehta submits before this Court the Report of the
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Police Sub Inspector, Adalaj Police Station,
Gandhinagar which states that both the cases are
pending and the charge-sheet has been filed for
hearing. Learned Additional Public Prosecutor Mr.
Mehta submitted that both the parties are required to
be sent for trial and would thus, get an opportunity
to adduce evidence on their counter claims.
12. Though both the parties have raised the plea of
civil rights on the disputed property, this Court does
not find any reason to interfere with the above
applications and does not find any case to quash the
impugned First Information Report/s. Further the
prayer made in Special Criminal Application No.3935
of 2013 for further investigation under Section 173(8)
of the Cr.P.C. cannot be adhered to. In addition,
since both the FIR's are connected with each other,
the applicants of both the applications may have an
opportunity to place their case before the trial Court
and the trial Court have an opportunity to appreciate
the case on the basis of the evidence so adduced by
both the parties.
R/CR.MA/20564/2013 ORDER DATED: 02/02/2023
13. In the result, the above applications stand
rejected. In Criminal Miscellaneous Application
No.20564 of 2013, Rule is discharged. In Special
Criminal Application No.3935 of 2013 and Criminal
Miscellaneous Application No.11027 of 2014, Notice is
discharged.
Sd/-
(GITA GOPI, J)
CAROLINE
