R/SCR.A/4483/2020 JUDGMENT DATED: 30/05/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4483 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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FEROZE FALIBHAI CONTRACTOR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR I.H. SYED, SENIOR ADVOCATE WITH MR P P MAJMUDAR(5284) for
the Applicant(s) No. 1
MR SURAJ B MATIEDA(10499) for the Applicant(s) No. 1
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR. NISARG N
JAIN(8807) for the Respondent(s) No. 2
MR BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 30/05/2024
ORAL JUDGMENT
1. This application is filed under Article 226 of the Constitution of
India read with Section 482 of the Cr.P.C., whereby applicant – original
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accused no. 1 – Firoz Falibhai Contractor, resident of Vadodara, is
seeking quashment of the FIR being CR. No.11196008200983 of 2020
registered with J.P. Nagar Police Station, Vadodara for the offences
punishable under Sections 177, 181, 406, 465, 467, 471 and 212 read
with Section 114 of the IPC and Section 6(d) of the Gujarat Prohibition of
Transfer of Immovable Property and provision of Protection of Tenants
from Eviction from the Premises in Disturbed Areas Act, 1991 (herein
after referred as ‘Disturbed Areas Act’).
2. This Court has heard learned Senior Counsel Mr. I.H. Syed assisted
by Mr. Panthil Majmudar, learned advocate appearing for and on behalf
of the applicant – accused, Mr.Shalin Mehta, learned Senior Counsel
assisted by Mr. Nisarg Jain, learned advocate appearing for and on behalf
of original informant – private respondent and Mr.Bhargav Pandya,
learned APP appearing for the respondent State.
3. Brief facts giving rise to file present application are that:
The applicant accused – Firoz Contractor vide registered sale deed
dated 07.02.2018 purchased property in question bearing plot No. 9
situated at Samarpan Society, Vasna Road, Tandalja, City
Vadodara.
The area in which the property is situated is declared as ‘disturbed
area’ and any party intend to transfer the property by way of sell
etc, the prior permission of the Deputy Collector under Section 5 of
the Disturbed Areas Act is necessary. Section 5 provides that,
subject to provisions of sub-section (3), no immovable property
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situated in the disturbed area shall during the period of subsistence
of the notification issued under sub-section (1) of Section 3
declaring such area to be the disturbed area, be transferred except
with the previous permission of the Collector. The procedure for
obtaining permission is provided in sub-section (3) of the Act,
which says that, any person intending to transfer immovable
property situated in a disturbed area may, within the prescribed
period and in the prescribed form, make an application to the
Collector for obtaining previous sanction under sub-section (1).
In light of the aforesaid statutory provisions, the application for
obtaining previous sanction was filed on 26.02.2015. The Deputy
Collector, Vadodara granted previous sanction on 21.09.2017.
The NOC from Samarpan Housing Society was also obtained on
30.01.2015. The applicant accused vide registered sale deed dated
07.02.2018, purchased the said plot no.9 from the erstwhile owner
Mr.Dashrathlal Panchal. The applicant accused while obtaining the
previous sanction, submitted an affidavit and filled up the check-
list, wherein he disclosed his caste/religion (Parsi) and also
mentioned his residential address i.e. Faramji Compound, B/h.
Railway Station, Alkapuri, Vadodara, as per the Government
record.
After purchasing the said property, applicant Firoz Contractor did
not want to retain the said property and decided to sell it to co-
accused Firoz Mohammad Patel, Sabir Mohammad and Hanifa
Mohammad Patel. As the property falls under the disturbed area,
the previous sanction of the Deputy Collector, Vadodara was
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necessary. The accused Firoz along with the proposed purchaser
applied for previous sanction on 04.05.2019. He as well as
purposed purchaser filled a check-list as well as submitted an
affidavit as per the procedure laid down under the Rules. In the
affidavit, the applicant Firoz did not mention his caste/religion. In
the affidavit as well as check-list, he mentioned the address which
is not his regular resident address. In such circumstances,
considering the particulars and contents of the affidavit as well as
check-list, the authority was of the view that the parties belong to
Muslim Community and therefore, without inviting police inquiry,
granted a previous sanction on 16.05.2019. Thereafter, the accused
executed a registered sale deed dated 14.06.2019 in favour of co-
accused Firoz Mohammad and others.
In the aforesaid facts and circumstances, the President of Samarpan
Housing Society, Manish Malhotra, after getting the necessary
documents and information through RTI, came to know that
accused Firoz, with dishonest intention, by concealment of fact
about his religion and furnishing a false document, mentioning
therein the false address by which he created an impression that be
belongs to a Muslim Community, obtained a previous sanction of
the Deputy Collector and thereby, he allegedly committed the
offence of criminal breach of trust, cheating and forgery.
The private respondent the President of the society, lodged an FIR
on 30.08.2020 inter alia alleging that the accused was legally
bound to furnish a true information, in relation to his religion
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and/or his caste as well as the true address for in depth enquiry and
despite of having knowledge about the procedure he intentionally
made a false statement on oath and by concealing the necessary
facts about religion and address, created an impression in the mind
of the authority that he belongs to a Muslim Community and
obtained a previous sanction. It is further alleged that application
accused Firoz was having knowledge that the NOC from the
society is necessary and must, as when he purchased the plot, he
applied for NOC and the same was granted on 30.01.2015,
however, for selling the said plot to the co-accused, he did not
inform to the society about his intention as well as transaction and
without obtaining the NOC, straightaway executed the sale deed in
favour of co-accused. It is further alleged that at the time of first
NOC issued by the society in favour of the accused, he made a
promise and assured to the society and its members that as and
when occasion arisen to sell the property, he will inform the
society and get the NOC.
In such set of circumstances, it is alleged in the FIR that in order to
obtain the previous sanction, by suppressing and concealing the
true facts about his religion, the authority was misled while
processing the application for granting previous sanction and by
not getting NOC from the society and making a false statement on
affidavit and by creating a document for address, the accused
committed an offence of criminal breach of trust, cheating, forgery
of the documents using as genuine.
Pursuant to said FIR, the investigation officer proceeded for
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investigation and after collecting necessary documentary evidence
and on recording the statement of the witnesses found a sufficient
evidence against the accused for the offence punishable under
Sections 177, 181, 406, 465, 467, 471, 212 read with Section 114
of the IPC and Section 6(d) of the Gujarat Prohibition of Transfer
of Immovable Property and provision of the Disturbed Areas Act.
In the result, the chargesheet came to be filed on 02.06.2021, which
has been culminated into criminal case no.18141 of 2020. In view
of the filing of the chargesheet, the applicant by amending this
petition, has also prayed for quashing of the proceedings of the
criminal case.
4. Mr. I.H. Syed, learned Senior Counsel has submitted the following
submissions:
(a) That the allegations made in the FIR and facts emerging from
the papers of the chargesheet do not reveal the commission of
the offence of criminal breach of trust, cheating and forgery of
the documents. The criminal machinery is being used with
malafide intention and the same is nothing but a cross misuse of
process of law and Court. The applicant accused and the co-
accused submitted an application for previous sanction as the
property falls under the disturbed area and filled up a check-list
as provided with the sworn affidavit. The authority concerned
after verification of the contents of the application granted a
sanction as provided under the Disturbed Areas Act. The
authority concerned or the private respondent, till date, has not
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initiated any proceedings to cancel the sanction granted by the
authority.
(b) That, the entire proceedings for obtaining sanction was being
done according to law and after thorough investigation by the
concerned, the previous sanction for execution of sale deed as
provided under the Disturbed Areas Act was granted.
(c) That Samarpan Cooperative Housing Society is not cooperative
housing society but it has been created for general maintenance
of the society and thus, the society being a service society, the
NOC from the society is not mandatory.
(d) That the religion or caste is not relevant or material for the
authority to grant a previsions sanction, because the paramount
consideration is to see whether the sale is for a fair
consideration and with free consent.
(e) That the non-disclosure of the caste by way of affidavit or
otherwise would not by itself an offence either under the penal
law or under the provisions of the Disturbed Areas Act.
5. In the aforesaid contentions raised herein, learned Senior Counsel
has submitted that the allegations made in the FIR and the chargesheet
case papers, even if accepted to be true in entirety do not disclose
ingredients of offence of criminal breach of trust, forgery as none of the
ingredients of the offence are attracted.
6. So far as offences under Sections 177 and 181 of the Indian Penal
Code are concerned, it was submitted that there is a legal bar against the
initiation of proceedings. Referring to Section 195(1) of Code of Criminal
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Procedure, 1973, it was submitted that the Trial Court has no jurisdiction
to take cognizance of the offence punishable under Sections 172 to 188 of
the Indian Penal Code, except the complaint in writing filed by the public
servant concerned. Thus, in view of the statutory bar to take cognizance
of the offence, the Trial Court could not have taken cognizance of the
offence punishable under Sections 177 and 181 of the Indian Penal Code.
7. It was submitted that the charge under Section 6(d) of the
Disturbed Areas Act is not sustainable in law as on the date of FIR i.e.
30.08.2020, the amended Section 6(d) was not came into force.
8. Lastly, it was submitted that where the allegations do not prima
facie constitute any offence or make out a case against the accused and
considering the allegations made by the President of the Society which
seems to be inherently improbable and the same has been manifestly
attended with malafide intention, this is a fit case to exercise inherent
powers to prevent the misuse the process of the law and Court.
9. On the other hand, learned Senior Counsel Mr.Shalin Mehta,
appearing for and on behalf of the private respondent – informant has
submitted that the applicant accused was aware about the procedure for
obtaining a previous sanction, as provided under the Disturbed Areas Act.
On the first occasion i.e. when he purchased the said property, the facts
about his caste and religion and true address disclosed by him on
affidavit. Based on this input, the thorough inquiry was undertaken by the
Deputy Collector. In the second transaction of the sale, the applicant
accused while obtaining previous sanction of the Deputy Collector for the
sale of the property which falls under the Disturbed Areas Act,
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intentionally did not disclose his caste Parsi and also furnished a false
address viz. Tarsali, Vadodara, which is mainly dominated by Muslim
Community. In such circumstances, in order to get a previous sanction
under the Disturbed Areas Act, by practicing deception and concealing
material facts, the applicant accused allegedly committed the offence of
criminal breach of trust, cheating and fraud.
10. It was submitted by learned Senior Counsel that, the NOC of the
society is a pre-condition, as earlier occasion, the applicant obtained the
NOC from the society, however, in the second sale which allegedly
executed in favour of the co-accused who are belonged to the Muslim
Community, the applicant was aware that the society will not issue NOC
because of the transaction to the Muslim Community, he intentionally did
not obtain the NOC from the society and despite repeated requests by the
society to pay the maintenance and furnished the particulars of the
transaction, the applicant did not heed the request. This shows the
conduct of the applicant accused as from the inception of the sale
transaction, he having a fraudulently intention to cheat the society and the
authority concerned.
11. In view of the aforesaid contentions, as raised by learned Senior
Counsel Mr.Mehta, he submitted that the allegations made in the FIR and
chargesheet case papers prima facie, make out a case for the offences
alleged, and therefore, considering the peculiar facts and circumstances of
present case, at this stage, the disputed question of facts which are tribal
issue cannot examine, by exercising inherent powers as it is to be tried
and tested by the Trial Court. Lastly, he would urge that the police has
filed the chargesheet in the matter and case is at the stage of framing of
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charge and in that view of the matter, the alternate remedy is available to
raise the issue at the appropriate stage.
12. On the other hand, learned Additional Public Prosecutor
Mr.Bhagav Pandya for the respondent – State, adopting the arguments
made by learned Senior Counsel Mr.Mehta for the private respondent, has
contended that the applicant accused had furnished his false address and
produced it by forging the document and in the affidavit, he concealed his
facts of his caste, whereby he played a fraud and deception and created
and impression in the mind of the authority that the parties are belonged
to Muslim Community. That the accused applicant did not inform the
society about the transaction. In the year 2017, when he purchased the
property, the accused promised to the office bearers of the society that as
and when the occasion arises for sale of the property, he will inform and
get the NOC from the society. Thus, considering the conduct and attitude
of the applicant accused, it prima facie established that on the very
inception of the transaction, his intention was cheated the society.
13. Having regard to the facts and circumstances of present case, the
question arises for consideration is whether the material on record prima
facie constitute any offences against the applicant accused ?
14. The applicant accused has been charged with the offence
punishable under Sections 406, 465, 467, 471, 177, 181 of the Indian
Penal Code and Section 6(d) of the Disturbed Areas Act. It is not in
dispute that a property in question i.e. plot no.9 of Samarpan Society falls
under the disturbed area. If any person intends to sell his or her property
which falls under the disturbed area, the prior permission of the Deputy
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Collector under the Disturbed Areas Act is necessary. It is not in dispute
that the applicant accused purchased the said plot no.9 by way of
registered sale deed dated 07.02.2018. The applicant is belonged to Parsi
Community. The said purchased transaction was between Parsi and
Hindu Community. The application for previous sanction of sale was
preferred by the erstwhile seller Mr.Dashrathlal Panchal, which was
sanctioned on 21.09.2017. The NOC from Samarpan Society was also
obtained in favour of applicant accused. In the affidavit submitted to the
Deputy Collector, the applicant accused disclosed his caste Parsi and
furnished his residential address as per the check-list, which was
submitted to the authority. The police verification was done. In such set
of circumstances, it prima facie appears that while obtaining a previous
sanction of sale, as provided under the Disturbed Areas Act, the applicant
accused did not disclose his caste in the sworn affidavit and despite his
permanent resident at Faramji Compound, behind Railway Station,
Alkapuri, Vadodara, he mentioned his address at Tarsali, Vadodara,
which is mainly dominated by the Muslim Community. Thus, this Court
is of prima facie view that, in order to get the previous sanction under the
Disturbed Areas Act, the applicant by concealing the material facts,
which has bearing on the decision making authority, intentionally,
furnished false information, so as to deceived the authority. It is pertinent
to note that the applicant was aware about the procedure and despite of
this, he intentionally did not disclose the true facts. It is on record that
when the applicant accused purchased the property, Samarpan Society
had issued a NOC. However, when the accused decided to sell the
property, he did not inform the society nor obtained any NOC despite of
promise being given to the office bearers of the society. It is evident that
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the society was unaware about the transaction and despite repeated
request by the society to pay the maintenance as well as furnishing
necessary particulars the applicant accused intentionally did not heed the
request. In such set of circumstances and considering the peculiar facts
and circumstances of present case, it cannot be said that no any offence is
made out or do not prima facie constitute any offence against the
accused.
15. It is the contention that the ingredient of criminal breach of trust
and forgery are lacking in the facts of present case. To buttress the
submissions, heavy reliance is placed on the case of Mohammad
Ibrahim and others Vs. State of Bihar (2009(8) SCC 751).
16. This Court does not find any substance in the submissions
advanced by the applicant. In the facts of present case, it is difficult to
examine independently each penal section for which the applicant has
been charged as the disputed question of facts required to be tried and
tested before the Trial Court. It is settled position of law that when the
disputed question of facts are involved, which needs to be adjudicated
after the parties adduced evidence, the criminal proceedings ought not to
have been quashed by the High Court by taking recourse to Section 482
of the Code of Criminal Procedure, 1973. Thus, the concealment of facts
and alleged false disclosure of the address as well as the caste required to
be considered by the Trial Court, at the stage of framing the charge
whether any other offence is made out or not. It is profitable to refer and
rely on the case of State of A.P. Vs. Golconda Linga Swamy (2004(6)
SCC 522), wherein the Supreme Court observed and held that when no
offence is disclosed, the Court may examine the question of facts. When a
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complaint is sought to be quashed, it is permissible to look into the
materials to assess what the complainant has alleged and whether any
offence is made out even if the allegations are accepted in toto.
17. In light of the settled legal position and applying to the facts of
present case, at this stage, cannot be said that prima facie no any offence
under the penal law is made out or do not prima facie constitute any
offence against the accused.
18. It is the second contention that so far as Sections 177 and 181 are
concerned, except upon private complaint by the authority concerned, the
Court based on the FIR would not have taken cognizance of the offence.
This Court finds substance in the submissions. It is settled legal position
that the inherent powers should be exercised to quash the proceedings
where it appears that there is a legal bar against the institution or
continuation of the proceedings (R.P. Kapoor Vs. State of Punjab,
2004(6) SCC 522). In the facts of present case, in view of the bar under
Section 195(1) of the Code of Criminal Procedure, 1973, the Trial Court
could not have taken cognizance of the offence punishable under Sections
177 and 181 of the Indian Penal Code, except on the complaint in writing
of the public servant concerned. Thus, so far as the offence under
Sections 177 and 181, the prosecution is not sustainable in law and the
same deserves to be quashed and accordingly it is quashed with a
clarification that the authority may initiate fresh proceedings after
following the proper procedure as laid down under Section 195(1) of the
Code of Criminal Procedure, 1973.
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19. It is the third contention that Section 6(d) of the Disturbed Areas
Act has been wrongly involved because on 30.08.2020, when FIR was
registered, the amended Section 6(d) was not come into force. The State
has fairly conceded these facts. As admittedly, on the date of registration
of the FIR, the State Government has not issued the notification the
matter was pending at the stage of assent of the Governor. Thus, it is
evident that on the date of registration of the offence, the amended
Section 6(d) was not come into force and therefore, invocation of Section
6(d) is not sustainable in law and the same deserves to be quashed and
accordingly, it is quashed.
20. In the facts of present case, the chargesheet has been filed against
the accused. The Apex Court in the judgment reported (Ishwar
Pratapsingh Vs. State of Uttar Pradesh, 2018 (13) SCC 612), held that
there is no prohibition under law for quashing the chargesheet in part.
21. In view of the discussions and reasons made hereinabove, this
Court finds that the charges under Sections 177 and 181 of the Indian
Penal Code and Section 6(d) of the Gujarat Prohibition of Transfer of
Immovable Property and provision of Protection of Tenants from
Eviction from the Premises in Disturbed Areas Act, 1991, are quashed.
Consequently, chargesheet to that extent is quashed. The FIR in respect
of other offences shall be tried by the Trial Court in accordance with law.
However, it is open for the accused to raise all the contentions before the
Trial Court at the appropriate stage.
22. The observations made hereinabove are tentative prima facie in
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nature and confined to the adjudication of the present application. The
Trial Court shall not get influenced by the said observations during the
course of trial.
23. Accordingly, the application is allowed in part.
(ILESH J. VORA,J)
Pallav/Rakesh
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