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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
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
Indian Penal code 1860 – Section 406 , 420 , 465 , 467 , 468 ,471,120-B-Code of Criminal Procedure 1973- Section 482 , 173(2) –Prevention of Atrocities Act – Section 3(1)(4) ,3(2)(5) ,18 – Land Revenue Code – Section 135(D) – Tenancy Act –Section 73(AA) – Punishment for criminal breach of trust- Cheating and dishonesty inducing delivery of property – Punishment for forgery – Forgery of valuable security, will – Forgery for the purpose of cheating –Using a genuine a forged document – Punishment for criminal conspiracy- Saving inherent power of High Court – Report of police officer on completion of investigation – Wrongfully occupies or cultivates any land owned by schedule cast or schedule tribe- Commits offence under the Indian Penal code is punishable for the term of ten years on the grounds of schedule tribe and schedule cast – Section 438 of the code is not to apply to persons committing an offence under the Act – Register of mutations and register of disputed case –
Finding of the Court:
Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure to investigate into a cognizable offence- Courts would not thwart any investigation into the cognizable offences-It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on- The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases - Present appeal succeeds. The impugned interim order is hereby quashed and set aside –
Result: Appeal Allowed
JUDGMENT :
1. 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 presen
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