Gujarat High Court
Ashokbhai Shanabhai Bhoi vs State Of Gujarat on 19 June, 2024
NEUTRAL CITATION
R/CR.MA/1131/2022 ORDER DATED: 19/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 1131 of 2022
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ASHOKBHAI SHANABHAI BHOI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AB GATESHANIYA(3766) for the Applicant(s) No. 1
MR NIRAV C THAKKAR(2206) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 19/06/2024
ORAL ORDER
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the
applicant has prayed to quash and set aside FIR being
C.R.No.11192020211043 of 2021 registered at Dholka Police
Station, Ahmedabad (Rural), for the offence under Sections 504
and 506(2) of the Indian Penal Code, 1860 and Sections 3, 4(1),
4(2), 4(3), 5(c) and 5(e) of the Gujarat Land Grabbing (Prohibition)
Act, 2020 as well as other consequential proceedings arising
therefrom.
2. At the instance of respondent No.2 - original complainant, FIR
came to be filed alleging that, the complainant purchased
immovable property i.e. shop No.1 in Padmavati Complex, situated
at Block No.388/paiki at Maflipur, from one Nilaben Dhaneshkumar
Shah by paying sale consideration of Rs.1,20,000/- in the year 2011
by way of registered sale deed No.950/2011 and assessment was
made on the name of the complainant and paying tax regularly. It is
alleged that, the applicant was doing a business in the said shop in
the name and style of 'Rajwadi Traders' and as the owner wanted to
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sell said shop, he offered the complainant to purchase said shop and
further told that he will evict the shop within 4-5 months. It is further
alleged that, the applicant had used to make contact of complainant
to Nilaben and therefore, the complainant had decided to purchase
said shop at Rs.1,20,000/-and thereafter, the complainant had used
to register the sale deed on her name vide sale deed No.950/2011
on 23.03.2011. In the said sale deed, the applicant had made
signature as witness. On the basis of sale deed, name of the
complainant had been registered in the assessment sheet and
complainant is paying tax since 2011. Therefore, the complainant
had told the applicant to evict the shop and the applicant had filed a
suit, wherein, initially, learned civil Court granted injunction on
26.09.2018. Then the said suit came to be dismissed. Thereafter,
the complainant and her husband went to the shop of the applicant
and asked to evict the shop and handover the possession, in the
event, the applicant replied that he will not evict the shop and
abused and threatened the complainant to kill him. In this regard,
the complainant has submitted a complaint under the Land
Grabbing Act and pursuant to the same, impugned FIR came to be
filed.
3. Learned counsel for the petitioner has submitted that the
impugned FIR is nothing, but an abuse of process of law; that the
petitioner is not a land grabber and he is in legal occupation of the
suit property since 2011, for which, the complaint has been filed in
the year 2021; that the petitioner is holding valid license by pointing
out that one Civil Suit No.296/2015 was filed before the learned Civil
Court, in which, order came to be passed below Exh:5 protecting the
possession of the petitioner and the complainant was restrained
from transferring, alienating and creating their rights in any manner
in the suit property directing the complainant not to disturb the
possession of the petitioner. He also submitted that the complaint is
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filed with an ulterior motive and therefore, the petitioner has not
committed any offence, much less the petitioner is not a land-
grabber as he is in legal occupation since long.
4. Learned APP for the respondent State has opposed the
present petition and contended that the chargesheet is filed and
civil suit filed earlier by the petitioner came to be dismissed. The
petitioner has suppressed material facts and merely based on the
earlier status quo order passed in his favour, he is claiming his
possession. Civil Suit was filed by the petitioner claiming himself as
owner and to prove his title over the disputed property, he had filed
a suit, which was dismissed. Whatever the defense is raised are
beyond the scope of petition. No such averment is filed in the
petition and disputes raised in the petition are disputed question of
facts, for which, full-fledged trial is required.
5. Mr. Nirav Thakkar, learned counsel for respondent No.2 -
complainant has reiterated the contentions made by learned APP
and submitted that, the petitioner is land-grabber and only with an
intention to stall the proceedings, suit was filed claiming himself as
owner of the property and title is in favour of the petitioner.
However, the suit was dismissed on merit and said order attained
finality. In fact, the petitioner is not owner of the suit property. Even
registered sale deed has been executed in favour of respondent
No.2 and in the said sale deed, the petitioner stood as a witness.
Considering the aforesaid submissions, Mr. Thakkar submitted that
though the petitioner was fully aware about the fact that the title is
in favour of the complainant, however, without any authorization
and/or right title over the property, he is in illegal possession of the
property and tried to grab the land, for which, he had filed a suit
with an intention to stall the proceedings. Whatever the defense
raised by the petitioner is question of evidence, for which, full-
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fledged evidence is required. Therefore, present petition does not
deserve any consideration and liable to be dismissed.
6. Having heard learned counsel for the respective parties and
perusing the material produced on record, it appears that the
complaint is filed at the instance of respondent No.2, wherein, it is
alleged that the petitioner was doing business in a shop situated on
the land in question in the name and style of 'Rajwadi Traders' and
his owner wanted to sell the shop, he had offered the complainant
to purchase the said shop and it was assured that he will vacate the
shop within 4-5 months. Further, sale deed came to be executed in
favour of respondent No.2 on 23.03.2011, in which, the petitioner
had made his signature as a witness. Based on the said sale deed,
complainant became the absolute owner of the shop and is paying
taxes regularly and his name is very much there in the assessment
sheet also.
7. Thereafter, the petitioner had filed civil suit before learned
Civil Court, Dholka being Regular Civil Suit No.374/2015, which was
finally dismissed on 26.09.2018 and then, impugned complaint is
filed under the provisions of the Land Grabbing Act. It needs to be
mentioned that, in the findings, learned Civil Court has observed
that the prayer prayed for by the petitioner to declare him as owner
of the suit property is without any evidence or basis and therefore,
he has declared as trespasser. Here during the course of arguments,
learned counsel for the petitioner has taken contradictory stand and
on one hand, he has stated that, he is a tenant and is in lawful
possession of the property and on the other hand, he has prayed to
declare him as owner and he has right title over the property.
Further, the learned Civil Court has observed that, the petitioner has
failed to prove his title. Nonetheless, the petitioner is encroacher
and trespasser. Even otherwise, as per Sections 41 and 42 of the
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Indian Evidence Act and from the reasons assigned after adducing
and appreciation of the evidence before the trial Court, it appears
that the petitioner is failed to prove his lawful possession and such
findings of the learned Civil Court are binding to criminal courts and
relevant to the facts and issue.
8. As contended by learned counsel for the petitioner that as the
civil suit was filed to scuttle the legal proceedings, the petitioner
was weighing as the accused could not take undue advantage of
pendency of the proceedings. Hence, merely after disposal of the
suit in the year 2018, application submitted before the Committee
and after inquiry, Committee has ordered to lodge a complaint.
Considering the aforesaid facts, it cannot be said that the complaint
is filed with an ulterior motive.
9. So far as defense under Section 2(d) of Land Grabbing Act is
concerned, it provides as under:-
"(d) "land grabber" means a person who commits land grabbing
and includes any person who gives financial aid to any person for
taking illegal possession of lands or for construction of unauthorized
structures thereon, or who collects or attempt to collect from any
occupiers of such lands rent, compensation and other charges by
criminal intimidation, or who abets the doing of any of the above
mentioned acts, and also includes the successors in interest."
3 - Land Grabbing to be unlawful - The land grabbing in any form
shall be prohibited and declared unlawful and any activity connected
with or arising out of land grabbing shall be an offence punishable
under this Act.
4. prohibition on Land Grabbing - (1) No person shall commit or
cause to be committed land grabbing, by himself or through any
other person.
(2) Any person who, on or after the commencement of this Act,
continues to be in occupation, otherwise than as a lawful tenant, of a
grabbed land belonging to the Government, local authority, religious
or charitable institution or endowment or other private person, shall
be guilty of an offence under this Act.
(3) Whoever contravenes the provisions of sub-section (1) or sub-
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section (2) shall on conviction, be punished with imprisonment for a
term which shall not be less than ten years but which may extend to
fourteen years and with fine which may extend to Jantri value of such
properties.
5 - Penalty for other offences in connection with land
grabbing - Whoever, with a view to grabbing land in contravention
of the provisions of this Act or in connection with any such land
grabbing,-
(a) xxx
(b) xxx
(c) uses any land grabbed or causes or permits knowingly to be used
for purposes, connected with sale or allotment; or
(e) causes or procures or attempts to procure any person to do any
of above mentioned acts; shall, on conviction, be punished with
imprisonment for a term which shall not be less than ten years but
which may extend to fourteen years and with fine which may extend
to Jantri value of such properties."
10. Considering the definition of Section 2(e) of the Act, it appears
that, the petitioner has tried to create tenancy/right of the tenant in
absence of any material to show that, there is relationship between
the petitioner and complainant as landlord and tenant. Firstly, the
petitioner had made an attempt to prove his title in deceitful
manner and learned Civil Court has assigned the reason that, the
petitioner is not the owner and he is not in lawful possession and
without lawful entitlement, he is in illegal possession of the said
property. Even otherwise, the petitioner has raised same issue first
time before this Court, which are beyond pleadings.
11. Further, learned counsel for the applicant has submitted that prior
to commencement of the said act, the applicant is in possession of the suit
property, hence, land Grabbing Act is not applicable to the applicant and
no offence is made out. It is needless to say that as discussed above, the
applicant failed to show his lawful possession. Even contradictory stand is
taken by the applicant. On one hand, he has stated that, he is tenant
and is in lawful possession of the property and on the other hand, he
has prayed to declare him as owner and he has right title over the
property, but he failed to show any relationship of tenant and
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landlord between him and complainant. Even otherwise, delay is not
a ground to quash the complaint in view of the law laid down while
deciding the legality and validity of Land Grabbing Act in SCA
No.2995/2021 and allied matters, wherein, the Division Bench of
this Court (Coram : Hon'ble the Chief Justice Mrs. Sunita Agarwal &
Hon'ble Mr. Justice Aniruddha P. Mayee) has observed as under:-
"330.Dealing with these submissions of the learned counsels
for the parties, when we have gone through the offending
provisions of the enactment, namely Land Grabbing Act, 2020
as placed the learned counsel for the petitioners, it may be
noted that the expression "continues to be in occupation"
under Section 4, the meaning assigned to the term "grabbed
land" under Section 2(e), the expression "with a view to
illegally taking possession of such land or creating illegal
tenancies, etc." without any lawful entitlement, have to be
understood to mean that the act of possession is not a
punishment with retrospective effect. What is punishable is the
possession of a "grabbed land" on or after the commencement
of the Act' 2020 without any lawful entitlement thereto, i.e. the
land over which the occupant has no ownership, title or
physical possession obtained by lawful means.
331. The person in possession of a "grabbed land" within the
meaning of Section 2(e), on the date when the Act' 2020 came
into force, has been brought under the umbrella of the "land
grabber" under the Act' 2020, as he would commit an offence
on the said date. The expression "whether before or after the
commencement of the Act" in relation to the alleged act of
"land grabbing" under the Act' 2020, does not make the
application of the Act retrospective in operation. It merely
affects in future, existing rights to occupy such land to which
the occupant has no right, title or interest or lawful entitlement
to possess, irrespective of the fact that the act of taking
possession had been done before the commencement of the
Act' 2020. The act of occupation of the "grabbed land" on the
date of commencement of the Act' 2020, without any lawful
entitlement, thereto constitutes criminal offence provided
under Section 4(2), irrespective of the fact whether the
possession was taken before the commencement of the Act'
2020, before making of such possession a criminal offence. In
the result, a stranger having no right, title or interest in the
land or a trespasser occupying the land of another person,
whether private or Government or of public trust, etc., without
lawful entitlement thereto, cannot take shelter as of being in
possession prior to the enactment, under the existing law, as
on 29.08.2020, the possession of such a person would not only
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be unlawful, but a criminal offence. Occupation of any land by
such a person after the commencement of the Act' 2020 would
be termed as an occupation of a "land grabber".
In view of the above, arguments canvassed by learned counsel for
the applicant is not sustainable as the applicant is in unlawful possession
of the property and complaint is filed in this regard.
12. In Iqbal Alias Bala & Ors. Vs. State of Uttar Pradesh & Ors,
reported in (2023) 8 SCC 734, the Hon'ble Supreme Court observed
that, prayer for quashment of FIR, matters to be considered by Court;
allegations levelled in FIR whether inspiring any confidence; absence of
any specific date; time etc. of alleged offence in FIR; effect of fact that the
investigation had been completed and chargesheet ready to be filed in
Court; proper remedy of accused in such; held is to prefer discharge
application before trial Court which would be considered in accordance
with law. Further, it has been observed that, prayer for quashment of FIR;
in the meantime, investigation completed and chargesheet ready to be
filed; proper remedy of accused in such a case'; relation to discharge
application under Section 227 of Cr.P.C."
13. Further, in the case of Ramveer Upadhyay & Anr. vs.
State of U.P. & Anr. reported in 2022 OnLine SC 484, the
Hon'ble Apex Court observed and held as under:
"Even though, the inherent power of the High Court under
Section 482 of the CrPC, to interfere with criminal proceedings is
wide, such power has to be exercised with circumspection, in
exceptional cases. Jurisdiction under Section 482 of the CrPC is
not be exercised for the asking."
14. Even the Hon'ble Apex Court in case of Central Bureau of
Investigation Vs. Aryan Singh etc., reported in 2023 SCC
Online Sc 379, held that scope under Section 482 of the Cr.P.C is
very limited and High Court cannot conduct a mini trial. The Hon'ble
Apex Court in para 10 held as under:-
"10. From the impugned common judgment and order
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passed by the High Court, it appears that the High Court
has dealt with the proceedings before it, as if, the High
Court was conducting a mini trial and/or the High Court was
considering the applications against the judgment and order
passed by the learned Trial Court on conclusion of trial. As
per the cardinal principle of law, at the stage of discharge
and/or quashing of the criminal proceedings, while
exercising the powers under Section 482 Cr.P.C., the Court
is not required to conduct the mini trial. The High Court in
the common impugned judgment and order has observed
that the charges against the accused are not proved. This is
not the stage where the prosecution / investigating agency
is/are required to prove the charges. The charges are
required to be proved during the trial on the basis of the
evidence led by the prosecution / investigating agency.
Therefore, the High Court has materially erred in going in
detail in the allegations and the material collected during
the course of the investigation against the accused, at this
stage. At the stage of discharge and/or while exercising the
powers under Section 482 Cr.P.C., the Court has a very
limited jurisdiction and is required to consider "whether any
sufficient material is available to proceed further against
the accused for which the accused is required to be tried or
not"
15. In wake of aforesaid discussion, present application stands
dismissed. However, it is clarified that, applicant shall have liberty
to move appropriate proceedings before the concerned Court and in
the event of filing of any such application or proceedings, the
learned Court after going through the evidence that may be
produced /adduced by the parties, shall consider the same in
accordance with law, on its own merit without being influenced by
any of the observations made in the order.
(HASMUKH D. SUTHAR,J)
SUCHIT
