Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Guj) 1375

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Vaibhavi D. Nanavati, J.
Nirmalaben @ Nilaben Takhatsinh Thakore – Appellant
Versus
State Of Gujarat & 9 Others – Respondents
R/Special Criminal Application No. 3091 of 2017 with Criminal MISC. Application (Fixing Date Of Early Hearing) No. 1 of 2021
Decided On : 04-10-2022

Advocates Appeared:
For the Appellant : Mr. Jay M. Thakkar.
For the Respondents: Mr. Vishwas S. Dave, Prashantkumar R. Sharma, Ms. Maithili Mehta.

The court emphasized that when civil litigation is pending for the property and possession is involved, parallel criminal proceedings should not be permitted. The decree of the civil court is binding on the criminal court in such matters.

Headnote:
Criminal Trespass - Land Dispute - Criminal Procedure Code 145 - The court quashed and set aside the impugned order dated 05.02.2015 passed by the Executive Magistrate and the order dated 19.04.2017 passed by the District & Sessions Judge. The civil proceedings were pending between the parties, and the court held that the impugned orders were passed without considering the pending civil proceedings.
Fact of the Case:

The writ-applicant purchased land by Registered Sale Deed. The respondent trespassed, leading to a criminal case. The Executive Magistrate declared the respondents in possession of the land. The writ-applicant filed a revision application, which was rejected on the ground of delay.
Finding of the Court:

The court found that the impugned orders were passed without considering the pending civil proceedings and quashed the orders.
Issues: The issues included the validity of the impugned orders, the pendency of civil proceedings, and the rejection of the revision application.
Ratio Decidendi: The court held that the impugned orders were passed without considering the pending civil proceedings, and therefore, quashed the orders.
Final Decision: The court allowed the writ-application, quashed the impugned orders, and disposed of the criminal misc. application.

ORDER :

1. By way of this writ-application under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 the writ-applicant herein has prayed for the following reliefs :-

“A) YOUR LORDSHIPS may be pleased to admit and allow the present Special Criminal Application;

B) YOUR LORDSHIPS may be pleased to quash and set aside the order dated 05.02.2015 passed in No.M. REG. CRPC 145/HEARING CASE NO.1/15 by learned Executive Magistrate, Vansda (ANNEXURE - 'A') and the order dated 19.04.2017 passed in Criminal Revision Application No.28/2016 by learned 2nd Additional District & Sessions Judge, Navsari, Camp – Vansda (ANNEXURE - 'B') and thereby be pleased to allow Criminal Revision Application No.28/2016 filed by the petitioner, in the interest of justice;

C) PENDING THE HEARING AND FINAL DISPOSAL OF THIS APPLICATION, BE PLEASED to grant stay on the effect, execution and implementation the order dated 05.02.2015 passed in no. M. REG. CRPC 145/HEARING CASE NO.1/15 by learned Executive Magistrate, Vansda (ANNEXURE - 'A') and the order dated 19.04.2017 passed in Criminal Revision Application No.28/2016 by learned 2nd Additional District & Sessions Judge, Navsari, Camp - Vansda (ANNEXURE - 'B'), in the interest of justice;

D) Any other and further relief(s) as this Hon'ble Court deems fit and proper, in the interest of justice.”

2. The subject matter is land bearing block No.1098, ad measuring 02-98-63 H. Are. Sq. mtrs. and block No.1175, ad measuring 00-80-83 H. Are. Sq. mtrs, situated at Mouje: Vandarvela, Taluka : Vansda, District: Navsari originally owned by the present respondents No.7 to 10.

3. It is stated that the writ-applicant herein purchased the aforesaid land by Registered Sale Deed dated 5.9.2014 and thereby the right, title and interest alongwith possession of the aforesaid land was transferred in the name of the present writ-applicant. The writ-applicant herein has placed on record the Registered Sale Deed dated 5.9.2014 which is duly produced at Annexure-C.

4. It is stated that since the writ-applicant herein could not personally protect the property, the writ-applicant herein had posted one security personnel to take care of the property and affixed a board displaying the name of the writ-applicant on the land bearing block No.1098.

5. It is further stated that it came to the knowledge of the writ-applicant herein that the respondent No.3 - Kantibhai Babubhai Patel of Village : Vandervel had instituted a suit being Special Civil Suit No.54 of 2014 against the original owner of the aforesaid land on 28.7.2014 seeking specific performance, declaration and injunction against erstwhile owners.

6. In the meantime, on 01.10.2014, the respondent no.3 broke the lock of the property in question and threatened the security personnel to leave the aforesaid lands and thereby committed criminal trespass. The respondent No.6 - son of the present writ-applicant was personally present at the place and immediately called Police Sub Inspector, Vansda and the police personnel in turn directed Kantibhai Babubhai Patel - present respondent no.3 to leave the aforesaid land.

7. On 04.10.2014, as a counter blast, the respondent no.3 lodged an FIR being II - C. R. No.80/2014 for the offences punishable under section 427, 447, 504, 506(2) & 114 of Indian Penal Code in connection of the above and the respondent No.6 came to be arrested for the aforesaid offences.

8. On 19.11.2014, the respondent No.3 herein alongwith 20 to 30 persons again committed criminal trespass on the aforesaid land and damaged the property of the writ-applicant, therefore the respondent No.6 – son of the writ-applicant again informed the police with regard to the aforesaid incident, and the police arrived at the spot and complaint came to be filed at Pratapnagar Police Station out post on 19.11.2014. Despite filing of the aforesaid complaint, no action was taken by the police and the respondent No.3 continued criminal trespass and i