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2015 Supreme(Guj) 210
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, J.
JAYESH J DAVE & 2 - Applicant(s)
Versus
JAYENDRA NANDLAL SHAH & 1 - Respondent(s)
SPECIAL CRIMINAL APPLICATION NO. 390 of 2011
Decided on : 22/04/2015
MR PRABHAV A MEHTA, ADVOCATE for the Applicant(s) No. 1 - 3
MR. ALKESH N SHAH, ADVOCATE for the Applicant(s) No. 1 -2 M/S S G ASSOCIATES, ADVOCATE for the Respondent(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 2
The judgment established the importance of physical possession and intent to commit an offence for the offence of criminal trespass, and the requirement of physical obstruction for the offence of wrongful restraint.
Headnote:
Quashing of FIR - Property Dispute - Sections 341, 447 r/w. 114 of the I.P.C. - Section 441 and 447 of the IPC discussed
Fact of the Case:
The case involved a property dispute where the accused were alleged to have forcibly taken over possession of the premises from the first informant, who claimed to be the owner of the property.
Finding of the Court:
The court found that even if the entire case of the prosecution was accepted to be true, none of the ingredients to constitute the offence of criminal trespass and wrongful restraint were spelt out.
Issues: The main issue was whether the proceedings against the accused should be quashed, considering the property dispute and the allegations of criminal trespass and wrongful restraint.
Ratio Decidendi: The court interpreted Sections 441 and 447 of the IPC, emphasizing the need to establish physical possession and intent to commit an offence for the offence of criminal trespass. It also highlighted the requirement of physical obstruction for the offence of wrongful restraint.
Final Decision: The court allowed the application and ordered the quashing of the FIR, stating that the continuation of the investigation by the police would be an abuse of the process of law.
1. Rule. Mr. Dabhi, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondent no.2. Mr. Gondaliya, the learned advocate waives service of notice of rule for and on bahalf of the respondent No.1the original first informant.
2. By this writ application under Article 226 of the Constitution of India, the applicants original accused seek to invoke the inherent powers of this Court praying for quashing of the FIR dated 15.02.2011 registered with the C.R. No.I65 of 2011 with the J.P. Road Police Station, Vadodara for the offence punishable under Sections 341, 447 r/w. 114 of the I.P.C.
3. The case of the respondent no.1original first informant may be summarized as under:
3.1 According to the first informant, he purchased a property being four shops bearing Unit Nos.C3, C4, C5 and C6, in the Indraprashth Complex, Vadodara from the applicants herein, who are engaged in the business of construction by way of saledeeds dated 10.09.2009. It is his case that on the date of the incident, the accused persons came in the morning at the premises and introduced themselves as Officers of the Income Tax Department before the Peon of the first informant, who was present at the relevant point of time. It is alleged that the accused persons informed the Peon that they had come for a search of the Office. The Peon got frightened and the keys of the shops were forcibly taken away by the applicants from the Peon and some files were also stagged in the Office with a view to show that the applicants were in actual possession of the premises.
3.2 It is the case of the first informant that although he is the owner of the premises and sale deeds have been executed in his favour and was in possession of the premises, yet, the applicants took over the possession of the premises forcibly and thereby, they committed the offence of criminal trespass and wrongful restraint.
4. Mr. Prabhav Mehta, the learned advocate appearing on behalf of the applicants submitted that his clients are in the business of construction running in the name of “Anjali Construction”. He submitted that his clients viz. 'Anjali Construction” executed sale deeds dated 10.09.2009 in favour of the first informant with regard to the four shops. The applicant no.1 as HUF alongwith the others are the confirming parties to the said sale deeds. He submitted that the total consideration was fixed at Rs.1 Crore and four separate sale deeds were executed between the parties. Mr. Mehta, submitted that the first informant has made payment of Rs.55 lac. The balance amount i.e.Rs.45 lac is still due and payable by the first informant to the applicants. He further submitted that one of the Clauses of the sale deed provides that as and when, the name of the society would be entered in the property card of the scheme then, the purchaser will have to make the balance payment of amount of Rs.45 lac. He also pointed out that one of the clauses also stipulates that the possession of the said C3, C4, C5, C6 is with the sellers and not with the first informant as the purchaser. It is only on the payment of balance amount of Rs.45 lac that the possession would be handed over to the first informant.
5. Mr. Mehta pointed out that in the year 2010, on the request made by the first informant, the possession of only Shop No.C5 was handed over to the first informant on personal grounds.
6. Mr. Mehta pointed out that his clients learnt that the first informant was trying to unauthorizedly take over the possession of the other three shops and therefore, his clients were constrained to file a Regular Civil Suit No.22 of 2011 on 06.01.2011 in the Court of the learned Additional Senior Civil Judge, Vadodara for injunction restraining the first informant from disturbing the possession of the applicants.
7. Mr. Mehta also pointed out that in the said suit the Exh.5 application for interim injunction was filed, which was allowed vide order dated 06.01.2011. He also p
