JUDGMENT :

HASMUKH D. SUTHAR, J.

1. This application is filed by the applicants under Section 482 of the Code of Criminal Procedure invoking the inherent jurisdiction of this Court to quash and set-aside order dated 19.6.2013 and the proceedings initiated pursuant to the Criminal Inquiry Case No. 10 of 2013 registered in the Court of learned Judicial Magistrate, First Class, Radhanpur.

2. Heard learned advocate Mr. D.K. Puj for the applicants, learned advocate Mr. Hasurkar for the respondent no. 2-complainant and learned APP Mr. L.B. Dabhi for the respondent no. 1-State.

3. Learned advocate appearing for the applicants has submitted that the present application is filed for quashing the Criminal Inquiry Case No. 10 of 2013 preferred against the present applicants. He has submitted that earlier also, on the same subject matter, one Mr. Ibrahim Hussainbhai Shaikh had filed Inquiry Case No. 35 of 2011 against the applicants and other persons and the learned Magistrate was pleased to direct for the investigation under Section 202 of the Code of Criminal Procedure. Thereafter, the Police Inspector had submitted a detailed report after carrying out the investigation. The Inquiry Case No. 35 of 2011 is still pending. Meanwhile, the present respondent no. 2 filed a second Criminal Inquiry Case No. 10 of 2013 against the applicants on the same subject matter, wherein it has been stated that the applicants have carried out illegal construction and have encroached upon a Government land. The said complaint is filed by the respondent no. 2 though he is not the owner or occupier of the land or authorized by the Nagarpalika in this behalf. It is submitted that with a view to harass the applicants and to abuse the process of law and with a mala-fide intention, the respondent no. 2-complainant has filed the present complaint and based on the said complaint, the learned Magistrate has passed an order of investigation under Section 202 of the Code of Criminal Procedure. It is submitted that even though civil proceedings are pending before the civil court, the learned Magistrate has passed the order of inquiry under Section 202 of the Code. The dispute is purely of a civil nature and it is with regard to the title and ownership of the land in question. Hence, the learned advocate has requested this Court to allow the present application by quashing and setting aside the order dated 19.6.2013 and the proceedings initiated pursuant to the Criminal Inquiry Case No. 10 of 2013 by the learned Judicial Magistrate, First Class, Radhanpur.

4. Per contra, learned APP Mr. L.B. Dabhi has vehemently opposed the present application and has submitted that both the subject matters are different. The case of hand is different from the earlier proceedings. In the earlier proceedings, even though inquiry was directed to be carried out and to submit the report, no proper investigation was carried out and the report was also not submitted. In the present case, the land is of the ownership of the Government and the applicants have made encroachment upon the said land and they are claiming ownership and possession of the said land. They have erected illegal construction over the said land. Hence, criminal proceedings came to be filed. So far as the earlier proceedings is concerned, the same is with respect to a fraudulent document of gift/hiba and the said transaction is challenged by the complainant of the Inquiry Case No. 35 of 2011. It is submitted that based on the said fraudulent transaction, the present applicants entered into further proceedings and they have forged and fabricated the document and tampered with the Government record. Hence, due to different set of facts and transactions, investigation is required to be carried out and order in this regard is required to be produced on record and then only the Magistrate shall have to take a call. There is no prejudice at all to the present applicants on merely filing a complaint. Hence, he requested this Court to d