Gujarat High Court
Jivabai @ Jahubai Adamji Malek W/O ... vs State Of Gujarat on 5 August, 2025
NEUTRAL CITATION
R/CR.MA/3542/2021 ORDER DATED: 05/08/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 3542 of 2021
==========================================================
JIVABAI @ JAHUBAI ADAMJI MALEK W/O SAHEBKHAN MAMADKHAN
W/O SOHEBKHAN MAMADKHAN
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR AB GATESHANIYA(3766) for the Applicant(s) No. 1
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/08/2025
ORAL ORDER
1. The present application is filed under Section 482 of the Code
of Criminal Procedure, 1973, seeking to quash and set aside the First
Information Report (FIR) being C.R. No.11211058200438 of 2020
registered with Bajana Police Station for offenses punishable under
Sections 406, 420 and 114 of the IPC.
2. Heard learned advocate Mr. A.B. Gateshaniya appearing on
behalf of the petitioner and the learned Additional Public Prosecutor
for the respondent-State. Though served, there is no appearance on
behalf of the private respondent.
3. Upon perusal of the First Information Report (FIR), it emerges
that multiple transactions have been brought under challenge. The
offences alleged pertain to Sections 406, 420, and 114 of the Indian
Penal Code. Insofar as the present petitioner is concerned, the crux
of the allegation is that the petitioners manipulated entries in the
revenue record pertaining to Survey No.104 of village Zezary,
NEUTRAL CITATION
R/CR.MA/3542/2021 ORDER DATED: 05/08/2025
undefined
Taluka Patdi, and allegedly obtained a loan from the concerned
bank.
4. In light of the aforesaid factual matrix, learned advocate for
the petitioner has submitted that Malek Bijbai Adamji--mother of
the petitioner--is no more. She is stated to have sold the disputed
land bearing Survey No.104 to the complainant's wife by way of a
registered sale deed, a copy of which is annexed at Annexure-B. It is
further submitted that since the land sold was classified as
'fragmented', the revenue entry in favour of the complainant could
not be mutated. The learned counsel pointed out that the petitioner
never approached the revenue authority seeking cancellation of any
revenue entry, nor was any such request made to the revenue officer.
The inability of the complainant to get the mutation entry recorded
in his favour appears to be solely attributable to the bar imposed by
the fragmentation laws.
5. It is thus submitted that initiation of criminal proceedings
against the present petitioner, under such circumstances, amounts to
sheer abuse of the process of law and does not warrant continuation
of the FIR qua the petitioner.
6. Per contra, the learned APP, upon examination of the
investigation papers, has candidly submitted that no material has
surfaced during investigation to suggest that the petitioner availed
any loan by mortgaging the land in question.
7. A perusal of the FIR reveals that the allegations levelled
against the petitioner are to the following effect:-
NEUTRAL CITATION
R/CR.MA/3542/2021 ORDER DATED: 05/08/2025
undefined
"It is further alleged that, on the very same day, i.e.,
24.05.2010, (1) Malek Bijbai Adamji and (2) Malek Jivabai
Abhji, both residents of Jezari, Taluka Patdi, District
Surendranagar, executed a transaction pertaining to land
bearing Survey No. 104, situated within the village limits of
Jezari, Taluka Patdi. The said parcel of land, valued at
₹1,00,000/-, was purchased in the name of the complainant.
However, it is alleged that the aforesaid individuals, by
impersonating the complainant and misusing his identity,
obstructed the process of entering the complainant's name in
the revenue records, including the Satbara Utara (7/12
extract) and other relevant land records. It is further alleged
that the said accused, by creating a false impression of
ownership, have obtained a loan from the society and the
bank by mortgaging the land in question. On the same date,
i.e., 24.05.2010, another incident is stated to have occurred
wherein (1) Adhubhai Sahib Khan Malek, (2) Kalukhan
Karim Khan Malek, (3) Kanji Karim Khan Malek, (4)
Bisukhan Karim Khan Malek, (5) Rasida Karim Khan
Malek, and (6) Himben Karim Khan Malek--all residents of
Jezari, Taluka Patdi, District Surendranagar--executed a
transaction concerning agricultural land bearing old Survey
No. 391 and old Survey No. 120. It is alleged that the said
individuals deliberately refused to sign the Form No. 135-D
notice, thereby preventing the complainant's name from
being entered in the 7/12 extract and other land revenue
records. Furthermore, the said land has allegedly been
encumbered by securing a loan from the society and the
bank, thereby creating a financial liability on the property. It
is also the complainant's case that, on 24.05.2010, he
purchased another parcel of agricultural land from the same
group of individuals, situated at village Jezari, Taluka Patdi,
District Surendranagar, bearing Survey No. 125/1, for a
consideration of ₹1,45,000/-. Despite having paid the full
sale consideration and having obtained the registered sale
deed, the accused persons neither signed the Form No. 135-
D notice nor facilitated the entry of the complainant's name
in the revenue records, including the 7/12 extract. On the
contrary, the land in question was mortgaged to the society
and the bank to avail a loan, thereby unlawfully
encumbering the said property."
NEUTRAL CITATION
R/CR.MA/3542/2021 ORDER DATED: 05/08/2025
undefined
8. A perusal of the allegations levelled in the FIR, reveals that
the grievance of the complainant is predicated upon an assertion that
the petitioners, by allegedly overwriting their names in the revenue
record, availed a loan by mortgaging the land bearing Survey
No.104. However, the record, including the report submitted by the
learned APP, does not support this allegation. In fact, it transpires
that the mutation entry in favour of the complainant was declined
solely on the ground that the land constituted a fragmented parcel,
and therefore, was not eligible for independent mutation. The
revenue authority is also shown to have cancelled such entry on this
specific ground.
9. Notably, there is no material on record to establish that the
petitioners mortgaged the land in question or availed any loan
thereon. The allegation of securing a loan against Survey No.104
thus appears to be wholly unsubstantiated and devoid of evidentiary
support.
10. It would be apposite to refer the judgment rendered by the
Hon'ble Apex Court in the case of State of Haryana v. Bhajan
Lal, reported in 1992 Supp (1) SCC 335, wherein, in Paragraph
102, it is held as under:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Ch.
XIV and of the principles of law enunciated by
this court in a series of decisions relating to the
exercise of the extraordinary power under Art. 226
or the inherent powers under sec. 482 of the Code
NEUTRAL CITATION
R/CR.MA/3542/2021 ORDER DATED: 05/08/2025
undefined
which we have extracted and reproduced above,
we give the following categories of cases 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 guidelines or rigid
formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
(1) 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.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
sec. 156(1) of the Code except under an order of a
Magistrate within the purview of sec. 155(2) of
the Code.
(3) 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.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only
a noncognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under sec. 155(2) of
the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
NEUTRAL CITATION
R/CR.MA/3542/2021 ORDER DATED: 05/08/2025
undefined
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceeding against the accused.
(6) 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.
(7) 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."
11. In view of the above, the present petition deserves to be
ALLOWED, and it is accordingly allowed. The FIR, being C.R.
No.11211058200438 of 2020 registered with Bajana Police
Station, along with all subsequent proceedings arising from it, is
hereby quashed and set aside qua the petitioner herein. Rule is made
absolute. Direct service is permitted.
(J. C. DOSHI,J)
MANISH MISHRA
