Gujarat High Court

Vinodkumar Bhikhaji Zala vs State Of Gujarat on 23 September, 2024

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

                                                                                                               NEUTRAL CITATION




                           R/CR.MA/18539/2024                                    ORDER DATED: 23/09/2024

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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                  FIR/ORDER) NO. 18539 of 2024

                      =====================================================
                                  VINODKUMAR BHIKHAJI ZALA & ORS.
                                               Versus
                                      STATE OF GUJARAT & ANR.
                      =====================================================
                      Appearance:
                      MR RIDDHESH TRIVEDI(6581) for the Applicant(s) No.
                      1,2,3,4,5,6
                      MR MANAN MEHTA ADDITIONAL PUBLIC PROSECUTOR for the
                      Respondent(s) No. 1
                      =====================================================

                         CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                                      Date : 23/09/2024

                                                            ORAL ORDER

1. By way of this petition, the petitioners have

prayed for quashing and setting aside the FIR

being C. R. No.11216012240232 of 2024 dated

13.7.2024 lodged with Rakhiyal Police Station,

District: Gandhinagar, at Annexure - A to the

petition.

2. The FIR at Annexure - A was registered by Sub

Registrar, Dahegam alleging that the present

petitioners committed an offence under Sections

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465, 467, 468, 471 and 120B of Indian Penal Code

and Sections 82 and 83 of Registration Act by

hatching a conspiracy to show the land for which

the registration of sale deed was sought as an

open land though on the aforesaid land, there

are about 88 residential premises situated and

the families are residing there for more than 50

years and the aforesaid lands were sought to be

sold by way of aforesaid sale deed without their

knowledge and in the aforesaid sale deed, in

stead of affixing the recent photographs showing

the residential premises of those more than 50

residential premises, the present petitioners

affixed the photographs of vacant land and

thereby, created false and fabricated evidences

and therefore, as the aforesaid act was objected

by way of a representation dated 12.7.2024 by

the residence of Pahadiya village, the FIR was

registered.

3. In the FIR it is stated that the registration of

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sale deed was sought to be registered on

13.6.2024 in respect of land situated at new

survey No.142 (old survey No.6) of village

Pahadiya of Dahegam Taluka and therefore, upon

registration of aforesaid FIR, the present

petition for quashing is preferred.

4. Learned advocate Mr. Riddhesh Trivedi appearing

for the petitioners submitted that it is not in

dispute that the families who objected to the

registration of aforesaid document are

encroachers as till date there is no civil

litigation before any Court of law initiated by

either side and the title of land is in the name

of the present petitioners. Learned advocate Mr.

Riddhesh Trivedi also questioned the powers of

Sub Registrar to register an FIR, as according

to learned advocate Mr. Riddhesh Trivedi,

Section 34 read with Section 82 of the

Registration Act does not confer any power upon

the Sub Registrar to go behind the document

which is sought to be registered.

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4.1 Learned advocate Mr. Riddhesh Trivedi

relied upon a decision of Karnataka High Court

in case of Pushpavalli Versus The Sub Registrar,

Gandhinagar, Bangalore in Criminal R. P. No. 453

of 2013 dated 19.7.2022 whereby a complaint

under Section 204 of Code of Criminal Procedure

was subject matter of challenge and vide order

dated 19.7.2022, the Karnataka High Court had

quashed and set aside the order of conviction

and sentence dated 19.10.2012 by the learned IX

Additional Chief Metropolitan Magistrate, which

was confirmed by the Fast Track Sessions Court

in Criminal Appeal were set aside on the ground

that the accused has not made any statement

before the Sub Registrar/complainant and the

alleged statement is only a recital in a deed of

conveyance presented by the accused for

registration.

4.2 By relying on the aforesaid judgment,

he has questioned the power of Registrar to

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made in the documents, which according to

learned advocate Mr. Riddhesh Trivedi, Registrar

does not have the power to go behind the

documents, registration of FIR is beyond the

powers and functions of Sub Registrar and

therefore, the same is required to be quashed

and set aside.

5. Learned Additional Public Prosecutor Mr. Manan

Mehta appearing for the respondent - State

vehemently opposed the petition and submitted

that the submissions advanced by learned

advocate Mr. Riddhesh Trivedi appearing for the

petitioners are misconceived.

5.1 Learned Additional Public Prosecutor

Mr. Manan Mehta appearing for the respondent -

State, drew attention of this Court to the

language of Section 21 of the Registration Act

read with Section 82 of Registration Act and

pointed out that Section 82 specifically

provides that if any false statement is made

intentionally, whether on oath or not, and even

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if, it is not recorded before any officer acting

in execution of the Act, if such false statement

is made in respect of any proceedings under

Sections 19 or Section 21 of the Act, the same

amounts to a criminal offence, for which a

punishment prescribed under the Act may go up to

seven years.

5.2 Learned Additional Public Prosecutor

Mr. Manan Mehta also pointed out that in the

instant case, the Registrar did not act beyond

his powers. In fact, the document was registered

and as stated in the FIR itself, on 12.7.2024

after registration of document as registered

sale deed No.3867 of 2024 on 12.7.2024,

objections were raised against such registration

by the persons, who had put up construction on

the land, by way of residential premises, more

than 50 in numbers, by indicating that though

they are residing on the land-in-question, yet

the land is shown as open land and some false

photographs are attached to the sale deed as the

same falls within the scoop and ambit of Section

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82 of the Registration Act read with Sections

465, 467, 468 and 461 of Indian Penal Code. The

FIR was registered by the Sub Registrar in good

faith just to prevent multiplicity of civil

proceedings and to ensure that no person who has

concealed the real fact from the Registering

Authority may take undue benefits of the

aforesaid registration done in good faith by the

officer and therefore, any action taken in good

faith and upon the victims having drawn the

attention of the Sub Registrar, the aforesaid

judgment relied upon by learned advocate

Mr.Riddhesh Trivedi appearing for the

petitioners would not be applicable. In the

aforesaid decision, the issue was different, as

the fact about advancement of loan was concealed

in the document and same would not affect any

other person in that petition.

In the case cited by learned advocate Mr.

Riddhesh Trivedi, the complaint was filed by the

purchaser, wherein in the instant case, the

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third parties who are having right, title or

interest over the property-in-question drew

attention of the Registrar that by placing on

record the false photographs and incorrect

details, the document is sought to be registered

and therefore, when there is a forgery and

misrepresentation by the petitioners by affixing

false photographs, when the Registrar upon

noticing the aforesaid facts by way of

objections raised by the victims, was justified

in registration of offence and by aforesaid

registration of documents, entire village was

sold and therefore, the petition is required to

be dismissed.

According to learned Additional Public

Prosecutor, it's not a question of about

Registrar's power or Authority but it's question

about malafide intention of the present

petitioners, who tried to sale away the

properties belonging to more than 50 families,

which they were owing since last more than 50

years and thereby, to see that in future that

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registration of document and photographs can be

used as a proof in some of the proceedings and

therefore, even if the petitioner is granted

anticipatory bail, the offence is required to be

investigated as it affects more than 50 families

and therefore, the petition is required to be

dismissed.

6. At this juncture, it was clarified by learned

advocate Mr. Riddhesh Trivedi that the land for

which the registered sale deed was executed by

the petitioners does not cover the entire

village but a land admeasuring 14597 sq.mtrs of

land and therefore, to say that the entire

village was sought to be sold by the present

petitioners is misconceived. Learned advocate

Mr. Riddhesh Trivedi also disputed the fact that

the issue before the Hon'ble Karnataka High

Court and issue before this Court are different

and he tried to point out from the aforesaid

judgment that the issue was the same before both

the Courts and therefore, this Court may

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consider and follow the judgment relied upon by

learned advocate Mr. Riddhesh Trivedi.

7. I have heard learned advocate Mr. Riddhesh

Trivedi appearing for the petitioners and

learned Additional Public Prosecutor Mr. Manan

Mehta appearing for the respondent - State.

7.1 I have also considered the fact that

the Sub Registrar has after registration of sale

deed on 13.6.2024 did not act immediately but it

is only after a representation/objections was

made to him vide order dated 12.7.2024 that the

land over which more than 50 families have

constructed, more than 88 residential premises

is sought to be sold away by way of a registered

sale deed, by the present petitioners, by

showing the land to be vacant land and by

placing on record the photographs of the land

indicating that it is a vacant land. The

photographs produced by the petitioners were of

some other land and therefore, an intentional

misrepresentation was there on the part of the

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present petitioners.

7.2 Section 82 of the Registration Act

reads as under :-

"82. Penalty for making false statements, delivering false copies or translations, false personation, and abetment.--Whoever--

(a) intentionally makes any false statement, whether on oath or not, and whether it has been recorded or not, before any officer acting in execution of this Act, in any proceeding or enquiry under this Act; or

(b) intentionally delivers to a registering officer, in any proceeding under section 19 or section 21, a false copy or translation of a document, or a false copy of a map or plan; or

(c) falsely personates another, and in such assumed character presents any document, or makes any admission or statement, or causes any summons or commission to be issued, or does any other act in any proceeding or enquiry under this Act; or

(d) abets anything made punishable by this Act, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both."

7.3 Section 82 of the Registration Act

specifically states that the statement need not

be on oath. It is the intention of the person

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that is important for an offence under Section

80 of the Act. Further, the intention must be in

respect of Section 19 or Section 21 of the

Registration Act and the offence must have been

committed before any officer, acting in

execution of the Act and therefore, as prima-

facie the offence of the present petitioners

satisfied the aforesaid condition, in view of

the language of Section 21 of the Act. Section

21 of the Registration Act reads as under:-

"21. Description of property and maps or plans.--(1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same.

(2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.

(3) Other houses and lands shall be described by their name, if any, and as being the territorial division in which they are situate, and by their superficial contents, the roads and other properties on to which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a Government

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map or survey.

(4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts."

7.4 Section 21 of the Act is specifically

in respect of description of property and maps

or plans. Considering the fact that Section 21

of the Registration Act provides for a

description of the property and that the

registration should not be done unless it is

accompanied by a true copy of map or plan. Had

the petitioner placed on record the real map or

plan, the same could have shown the existing

residential premises of the complainant but in

the instant case, as the petitioner produced the

photographs of the vacant land, it can be said