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2011 Supreme(Guj) 218
2011 (2) GCD 1620 (Guj)
Hon’ble Mrs. Justice Sonia Gokani
Sursinh Bhimsinh Parmar
Versus
State of Gujarat & Anr.
Criminal Revision Application No. 699 of 20071—Decided on 01/04/2011
Appearance :
Mr. Mehul H. Rathod, for the Applicant No. 1.
Mr. K.P. Raval APP, for the Respondent No. 1.
Rule Served, for the Respondent No. 2.
Point in Issue :
Whether applicants in the facts of the case entitled to discharge from charges levelled against them.
Headnote:Head Note :
Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 397 and 401 — [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 406, 420, 114, 467 and 47 — Land Revenue Code — Section 135-D — Criminal proceedings — Application for discharge — Dismissal of — Sustainability — Finding of — The case of prosecution is that the land sold was conspired to be once again sold to other parties with the help of present applicants who were land brokers and for that hatched this conspiracy — On perusal of the statements of different witnesses it prima facie emerges from record that they have named all the present three applicant of having approached for selling the impugned land extending excuses to get land — One of the applicants is also alleged to have identified one of the land owner when she put a thumb impression on notice received from revenue authority — They have colluded to sell the land second time to the witness M. in spite of such glaring fact of previous sale — Court held that there being no ingredients of absence of suspicious grounds or sufficiency of evidence, the impugned order does not warrant any interference.
Held :
The case of prosecution is that the land, which was sold by way of registered sale-deed, was conspired to be once again sold to other parties for unjust benefit and in illegal manner in collusion with one another. This conspiracy was hatched at the time when the notice under Section 135-D under the Land Revenue Code was issued by the Talati concerned as entry was to be mutated in the record of such a transfer of land. Prosecution further states that this non mutation has made original owners greedy who with the help of the present applicants who was allegedly working as land brokers, hatched this conspiracy. [Para 9]
On perusal of the statements of different witnesses, it prima-facie emerges from the record that they have named all the three applicants of having approached them for selling of the impugned land as also by extending other excuses admittedly to get land. One of the applicants is also alleged to have identified one of the land owners Jiviben when she put a thumb impression on a notice received from the revenue authority under Section 165 of Bombay Land Revenue Code. They have colluded to sell the land second time to the witness-Mukeshbhai Gadhvi in spite of such glaring facts of previous sale. [Para 10]
Learned Judge, in brief, reasoned out as to why the charges against the accused cannot be said to be groundless and did not entertain the application of discharge. From the legal provision as also the role attributed in the documents of the prosecution to each of the applicants, this Court is of the opinion that there being no ingredients of absence of suspicious grounds or insufficiency of evidence and therefore the order does not warrant any interference from this Court. [Para 12]
Law Laid Down :
At the stage of 227 Criminal Procedure Code the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused.
Case Law Analysis :
P. Vijayan vs. State of Kerala and Another, (2010) 2 SCC 398 [Para 6].—Relied on
Sonia Gokani, J.—Both these revision applications under Sections 397 read with 401 of Code of Criminal Procedure are preferred by the original accused Nos. 3, 4 and 5 respectively challenging the order of learned Addl. Chief Judicial Magistrate passed on the applications of discharge being Exh.12 and Exh.10 respectively in Criminal Case No. 1349 of 2007, urging this Court to quash and set aside the impugned order and to discharge all the applicants from the criminal case mentioned herein before. It also sought to stay the further proceedings of Criminal Case No. 1349 of 2007 pending before learned Chief Judicial Magistrate, Deesa.
2. It would be required to briefly recapitulate the fact of said Criminal Case No. 1349 of 2007 so as to grasp controversy raised before this Court.
3. Present applicants one Jiviben G. Patel and Purshotam G.Patel (respectively accused Nos. 1 and 2 in the original proceedings) are the resident of village: Kant of Deesa Taluka. Both accused Nos. 1 and 2 are the original land owners who sold their land, as per the case of prosecution, bearing Survey No. 79/1 to one Shri Mukeshbhai Gadhvi, MLA, Danta vide registered sale deed dated 13th June, 2006 bearing Index No. 2861 by registering the said deed in the Sub-Registrar Office. Said sale-deed was witnessed by 2 witnesses, namely, Shakid Shaikh and Mali Somaji. One FIR came to be lodged before the Deesa Police Station bearing C.R.No.I-121/06 for the offence punishable under Sections 406, 420 and 114 of Indian Penal Code adding the offence under Sections 467 and 471 before the Court. Though, the present applicants-original accused have not been shown as accused in the FIR, on due investigation they were found arraigned as an accused in the charge-sheet placed before the Court. It is the case of the prosecution that original land owners, after getting the land converted into Non Agricultural land sub-plotted them and transferred by way of sale to the proposed society by registered sale deed dated 2.6.1984 as also to one Shri Vijaykumar Ramniklal. It is further alleged that thereafter for getting further economic benefits in unjust and illegal way, an attempt was made by hatching the conspiracy to sell the sub-plots, which were already once sold and thus, original land owners are alleged to have done criminal breach of trust and hatched a conspiracy in collusion with present applicants, Shambhaji Manaji Thakore and Kalyan Manaji Thakore. Both these applicants preferred an application vide Exh.12 whereas petitioner Sursinh Bhimsinh Parmar of Criminal Revision No. 699 of 2007 made an application vide Exh.10 of discharge. After hearing both the sides and adverting the contentions, learned Chief Judicial Magistrate by its common order dated 8th October, 2007, rejected both these applications Exh.10 and 12, thereby rejecting the request of discharge by giving detailed reasoning’s. Impugned order is in challenge before this Court.
4. This Court has heard at length, the Learned Advocate, Mr. Mehul Rathod, for all the three petitioners who has strenuously submitted that this is a pure case of discharge when the names of the present applicants do not appear in the FIR and even otherwise, roles attributed to them is of identifying the thumb impression of Jiviben in a notice issued under Section 135-D of the Land Revenue Code and nothing more. He also further pointed out from some of the statements recorded during investigation, the names of these applicants appear and what at the best can be attributed to these applicants is their having made inquiries from the original plot holders regarding their willingness to sale properties but that could surely not result into arraigning them as accused when otherwise, neither there is an overt role played by any of the applicants nor the same is attributed in the papers and prosecution. He further emphasized that prosecution’s case even if is accepted in toto, taken at its best, then also, no case is being made out to cha
