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GUJARAT HIGH COURT
Sonia Gokani, J.
Rasid Mohammed Vali Mohammed Khalifa – Appellant
Versus
State of Gujarat & others – Respondents
R/Criminal Misc Application No. 12529 of 2013
Decided on 12-07-2021
(A) Criminal Procedure Code, 1973 – Section 482 – Criminal breach of trust, cheating, forgery and conspiracy – Quashing petition – Restraint order – High Court when is prima facie of opinion that an exceptional case was made out for grant of interim stay of further investigation, after considering broad parameters while exercising powers under Section 482 of Code of Criminal Procedure and under Article 226 of Constitution of India shall need to give brief reasons as to why such interim order is warranted – It is required to reflect and demonstrate its application of mind so that higher forum can consider as to what has weighed with High Court while passing such interim order. (Para 16.2)
(B) Criminal Procedure Code, 1973 – Section 482 – Quashing petition – Interim order – FIR is not an encyclopaedia which must disclose all facts and details relating to offence reported – When investigation by police is in progress, court should not go into merits of allegations in FIR – Police must be permitted to complete investigation – It would be premature to pronounce conclusion based on hazy facts that complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law – After investigation, if investigating officer finds that there is no substance in application made by complainant, investigating officer may file an appropriate report/summary before Magistrate which may be considered by Magistrate in accordance with known procedure – Power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires court to be more cautious – It casts an onerous and more diligent duty on court. (Para 23)
(C) Criminal Procedure Code, 1973 – Section 482 – Quashing petition – Restraint order – Interim order of stay of investigation during pendency of quashing petition can be passed with circumspection – Such an interim order should not require to be passed routinely, casually and/or mechanically – Normally, when investigation is in progress and facts are hazy and entire evidence/material is not before High Court, High Court should restrain itself from passing interim order of not to arrest or “no coercive steps to be adopted” and accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before competent court – High Court shall not and as such is not justified in passing order of not to arrest and/or “no coercive steps” either during investigation or till investigation is completed and/or till final report/charge-sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of quashing petition under Section 482 Cr.P.C. and/or under Article 226 of Constitution of India. (Para 23)
Result: Petitions allowed.
JUDGMENT
This is a petition preferred under Section 482 of the Code of Criminal Procedure in relation to the I-C.R.No.172 of 2012 registered with Vapi Police Station for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code and the addition thereafter of the provisions of Prevention of Atrocities Act under Sections 3 (1)(4) and 3 (2) (5).
2. The first informant is the Mamlatdar, Pardi, who has stated in his complaint inter alia that there was a written complaint made by Ex- Sarpanch, Shri Nareshbhai Patel of village Salvav with regard to land bearing revenue survey No.249 paiki and other parcels of land pursuant to which, the vigilance officer after inquiring, directed the registration of the present FIR against the present accused.
3. It is the case in the FIR that the land bearing survey No.249 situated at village Salval was a new tenure land upto the year 1996-1997. The entry showed the name of Bhagwan Parag Nayka as the owner of the land in the year 1998-1999 to 2004-2005. Some tampering is alleged in the revenue record & the name of Bhagwan Kika appeared as an owner and a mutation entry to the said effect was posted. It is alleged that Talati of the village entered the said name and removed the restrictions of Section 73 (AA) and the mutation entry No.5152 dated 21.10.2008 was posted. It is also alleged that the accused persons in the capacity of legal heirs of Bhagwan Kika, got their names entered into the record of rights and mutation entry No.5153 was posted on 21.10.2008.
3.1 It is further alleged that legal heirs of Bhagwan Kika gave power of attorney on 26.03.2008 for dealing with the said land to one of the accused and the said power of attorney sold the land to other co-accused by registered sale deed. It was further then sold to other co-accused Navin Bhagwan Patel; however, the entry of sale was cancelled and therefore, the name of subsequent purchaser did not appear in the record of revenue.
3.2 It is alleged in the FIR that by tampering the revenue record, the said land was dealt with though the same was 73 (AA) land and therefore, by tampering with revenue record, the offence is said to have been committed.
3.3 The present applicant was serving as Deputy Mamlatdar, Pardi from the period 26.06.2008 to 02.11.2009. He was superannuated on 31.03.2011. He posted the two entries No.5152 and 5153 in connection with the said land. He, therefore apprehended his arrest in connection with the said offence and therefore, he preferred anticipatory bail before the District and Sessions Court, Valsad being Criminal Misc. Application No.303 of 2013, which was rejected by Additional Sessions Judge, Valsad on 20.06.2013.
3.4 He then preferred an application for anticipatory bail before this Court being Criminal Misc. Application No.11546 of 2013, which too was not pressed on 23.07.2013 in view of the bar under Section 18 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. He, therefore, has approached this Court seeking quashment of the FIR.
3.5 The applicant has urged that the entry No.5152 which is an entry of successor of deceased Bhagwan Kika was mutated by him since the death certificate along with the affidavit and the documents of extract of village Form No.7/12 had been produced. It was produced before the Deputy Mamlatdar, E Dhara for getting their names entered into the record of right. The Deputy Mamlatdar, E-Dhara processed the request. Thus, looking at the certified documents of the land in question, the present applicant has posted the entry. Therefore, it is wrong to say that he has committed the offence of forgery as alleged in the FIR.
3.6 So far as the deletion of restriction of Section 73 (AA) from 7/12 extract is concerned, admittedly, according to the said application, the allegation in the FIR explains that the offence is committed by the then Talati of the village, who has arrested and as per the best of the knowledge of the p
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