Gujarat High Court
Narabhai Kodarbhai Patel vs State Of Gujarat on 2 January, 2023
Bench: Gita Gopi
R/CR.MA/8080/2016 ORDER DATED: 02/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8080 of 2016
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NARABHAI KODARBHAI PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR JIGAR G GADHAVI(5613) for the Applicant(s) No. 1
MR DA SANKHESARA(5955) for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 02/01/2023
ORAL ORDER
1. RULE. Learned Additional Public Prosecutor waives
service of notice of Rule on behalf of respondent -
State and learned Advocate Mr. D.A. Sankhesara
waives service of notice of Rule on behalf of the
respondent No.2.
2. This application has been filed under Section 482 of
the Code of Criminal Procedure, 1973 for quashing
and setting aside the First Information Report bearing
I-C.R. No.24 of 2016 registered with Vadali Police
Station, Sabarkantha for the offences punishable
under Sections 465, 467, 468, 471 and 114 of the
Indian Penal Code and the proceedings initiated in
R/CR.MA/8080/2016 ORDER DATED: 02/01/2023
pursuant thereto. The applicant herein is aged
about 80 years who has been arraigned as an accused
No.2 in the above First Information Report.
3. Learned Advocate for the applicant Mr. Jigar G.
Gadhavi submits that the above First Information
Report is absolutely false, frivolous, vexatious,
concoted and is filed with an ulterior motive coupled
with malacious and fake allegations. It is submitted
that the complainant is the daughter of Vankar
Haribhai Dhulabhai from whom the present applicant
had purchased the property bearing Survey No.3, Part
No.4, admeasuring 1 acre and 18 gunthas with a well
after payment of the due consideration and the
possession of the land was handed over to the
applicant on the very same day when registration of
the Sale Deed was on 26.06.1981. It is further
submitted that with registration of the Sale Deed
before the Sub-Registrar, Idar, the right was granted
to the applicant to get his name mutated in the
Government revenue records but since Vankar
Haribhai Dhulabhai expired on 06.04.1984, the
necessary process of mutation could not be concluded
R/CR.MA/8080/2016 ORDER DATED: 02/01/2023
and hence, the heirs of the deceased were required to
give consent to the present applicant for getting his
name entered in the revenue record. It is also
submitted that the allegations are levelled by the
daughter of the deceased against her brother -
Dahyabhai Haribhai Vankar. By an order of this
Court dated 20.08.2019 passed in Criminal
Miscellaneous Application No.8375 of 2016, the First
Information Report qua the brother came to be
quashed and all the consequential proceedings arising
out of the said First Information Report were also
ordered to be quashed. It is further submitted by
learned Advocate Mr. Jigar G. Gadhavi that by way
of the Sale Deed, the name of the present applicant
was required to be mutated, so to delete the name of
the complainant and her sister - Alkhiben, brother -
Dahyabhai, an affidavit cum declaration on
04.07.2012 was prepared; however, it is alleged that
the thumb impression of the complainant as well as
the sister are forged. Further allegations are also
made to the effect that the said forged documents
were used and the legal rights of the complainant
came to be deleted from the revenue records, to
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which learned Advocate Mr. Jigar Gadhavi submitted
that the mutation was effected vide Entry No.2889 on
05.07.2012 and against that entry, it is submitted that
the complainant had filed RTS Appeal No.90/2014
before the learned Deputy Collector, Idar and by an
order dated 05.12.2014, the Entry No.2889 dated
05.07.2012 was ordered to be certified. Thereafter,
qua a private complaint, initially an order was passed
under Section 210 of the Code, a report was called
from the concerned police wherein it was concluded
that there was no criminality to the complaint.
4. Learned Advocate for the applicant Mr. Jigar S.
Gadhvi has relied upon the Report dated 07.07.2015
of the Vadali Police Station with Javak Entry No.971
of 2015 to submit that the sister of the complainant
- Alkhiben before the police had given a statement
and even the statement of witness Anilbhai
Jayantibhai Valad was recorded by the police and
according to them, there was no forgery, rather
Alkhiben confirmed the fact that during the time of
executing the Affidavit for pedigree, she had put her
signature and in the same way, witness - Anilbhai
Jayantibhai Valad has also affirmed his signature as a
R/CR.MA/8080/2016 ORDER DATED: 02/01/2023
witness. As per the statement before the police, the
complainant, her sister Alkhiben and the witness
Anilbhai Jayantibhai Valad had executed the affidavit
for the pedigree. It is submitted that inspite of the
Report of the Police, the learned Magistrate on
10.02.2016 had directed the police officer to register
the First Information Report.
5. It is further submitted that there would be no case
against the present applicant as he is purchaser of the
property since the Sale Deed was executed by the
father of the complainant and thus, even if she as
heirs of the deceased, denies of any signature, the
Entry regarding the Sale Deed is required to be
mutated in favour the present applicant. It is
further submitted that the statement of the witness
Anilbhai Jayantibhai Valad and sister - Alkhiben
clarifies that infact the complainant had put the
signature on the Affidavit and the Report of the
police suggests that the witness was threatened by the
complainant herself. The very fact of the revenue
proceedings by way of RTS Appeal No.90/2014
clarifies that the complainant and her sister before
the Notary on 04.07.2020 alongwith the photographs
R/CR.MA/8080/2016 ORDER DATED: 02/01/2023
had waived their rights. The dispute raised by the
complainant was not believed by the Deputy
Collector, Idar and the application came to be
rejected on 05.12.2014 and the entry was confirmed,
to be certified by the Deputy Collector and hence,
the present applicant is entitled by way of the Sale
Deed to get his name mutated in the revenue record,
hence urged for quashing the First Information
Report.
6. On the other hand, learned Advocate Mr. D.A.
Sankhesara submits that the trial is required to be
initiated where there was a case of forgery, the First
Information Report was ordered to be registered by
the learned Magistrate after enquiry on the private
complaint. It is further urged that though the First
Information Report is ordered to be quashed qua the
brother of the complainant, the trial against the
present applicant is required to be proceeded.
7. This Court has heard the learned Advocates on both
the sides and has perused the material on record. The
dispute appears to be inter-se between the heirs of
the deceased. The RTS proceedings did not find
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favour with the complainant. The disputed entry
was effected in the year 2012, the RTS proceedings
were initiated in 2014, the First Information Report
came to be lodged in 2016. The police report dated
07.07.2015 had concluded that there was no offence
established against the accused. The statement of
the sister of the complainant and the complainant
were also recorded and they had confirmed the fact
that the Affidavit was executed by them before the
notary and the sisters have waived their rights and
the very statement before the Police concludes the
fact that there was no forgery. In addition, no
complaint has been filed by the sister of the
complainant nor the witness had alleged any fraud.
It appears that since there is a dispute between the
brother and sister with regard to their civil rights and
having been unsuccessful before the revenue
authority, with an oblique motive, the complainant
had tried to convert the civil dispute by giving a
colour of criminality, while the police confirms by
recording of the statement of the sister and the
complainant that the documents were found to be
executed before the Notary.
R/CR.MA/8080/2016 ORDER DATED: 02/01/2023
8. In case of State of Haryana V. Bhajan Lal and Others
reported in AIR 1992 SC 604, the Apex Court made
the following observations:-
"8.1. In the exercise of the extra-ordinary power
under Article 226 or the inherent powers under Section
482 of the Code of Criminal Procedure, the following
categories of cases are given by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any Court or otherwise
to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guide in myriad
kinds of cases wherein such power should be exercised
:-
(a) where the allegations made in the First Information
Report or the complaint, even if they are taken at
their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case
against the accused;
(b) where the allegations in the First Information
Report and other materials, if any, accompanying the
F.I.R. do not disclose a cognizable offence, justifying
an investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code;
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(e) where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis
of which no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused;
(f) where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and / or where there is a specific provision in the
Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge."
9. Thus taking into consideration the facts of the case as
also the decision in the above referred judgment, it is
not in dispute that the Sale Deed was already
executed by the father of the complainant and the
revenue proceedings certifies the disputed revenue
entry, which is further substantiated by the Report of
the Police where no offence has been alleged and
further the First Information Report qua the brother
of the complainant was ordered to be quashed by an
order dated 20.08.2019 passed in Criminal
Miscellaneous Application No.8375 of 2016, the
R/CR.MA/8080/2016 ORDER DATED: 02/01/2023
present applicant being the purchaser of the land
from the father of the complainant, this Court does
not find any reason to allow the First Information
Report to continue against the applicant.
10. In the result, the application is allowed. The
impugned first information report bearing I-C.R.
No.24 of 2016 registered with Vadali Police Station,
Sabarkantha, and the proceedings initiated in
pursuance thereof qua the applicant is quashed and
set aside. Rule is made absolute.
Direct Service is permitted.
Sd/-
(GITA GOPI, J)
CAROLINE
