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Shilpaben Ganeshbhai Bhatia v/s State of Gujarat & Another


Company & Directors' Information:- S N BHATIA AND CO PRIVATE LIMITED [Active] CIN = U99999DL1976PTC008293

Company & Directors' Information:- BHATIA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U70109DL1986PTC024822

Company & Directors' Information:- K. BHATIA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U51420MH1960PTC011708

    Criminal Misc. Application No. 13858 of 2011

    Decided On, 15 February 2018

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE J.B. PARDIWALA

    For the Applicant: C.B. Upadhyaya, Advocate. For the Respondents: Zubin F Bharda, Advocate, Rakesh Patel, APP.



Judgment Text

Oral Order:

I am informed that the respondent no.2 - original complainant has passed away.

By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused has prayed for the following reliefs :

"(A) Be pleased to grant this Application.

(B) Be pleased to quash and set aside the Complain being No.Cri.Inquiry No.32 of 2010 filed by the complainant under sections 323, 506(2) and 114 of IPC.

(C) Pending hearing and admission of the present application be pleased to stay the proceeding of the Cri Inquiry being No.32 of 2010.

(D) Be pleased to grant any such or further order/s as it may deem fit by this Hon'ble Court."

On 19th January 2012, the following order was passed by a coordinate bench :

"Heard the learned advocate for the applicant and learned APP.

It is submitted that, in the earlier round of litigation, respondent No.2 filed a private complaint, which came to be dismissed by the learned Metropolitan Magistrate, Ahmedabad, vide order dated 30.10.2010 and, in a challenge before the Revisional Court, the order passed by the learned Magistrate came to be confirmed on 30.3.2011. It is further submitted that, considering the report submitted by the Investigating Officer in the present Enquiry Case No.32 of 2010, the nature of dispute, for which civil proceedings were pending, and no offence, as alleged, were made out, issuance of process by the learned Metropolitan Magistrate, Court No.13, Ahmedabad, by the impugned order dated 2.4.2011 below Exh.1 in Enquiry Case No.32 of 2010, is nothing but abuse of process of law.

Issue notice returnable on 23.2.2012.

Ad-interim relief in terms of paragraph 12(C).

Learned APP waives service on behalf of the State.

Direct service is permitted qua the private respondent."

The litigation has a checkered history. I may quote the judgment and order pronounced by this Court dated 5th May 2017 in the Special Criminal Application No.533 of 2015 between the same parties. The judgment of this Court contains all the relevant facts and the dispute between the parties. It reads thus :

"1. By this writ application under Article 226 of the Constiution of India, the writ applicant-original accused No.5 has prayed for the following reliefs;

(A) Be pleased to grant this application.

(B) Be pleased to quash and set aside the Complaint being No. Criminal Complinat No.304 of 2012 filed by the complainant under sections 217, 218, 219 and 114 of the IPC and u/s 158 The Bombay Police Act.

(C) Penidng hearing and admission of the present application be pleased to stay the proceedings of the Cri Inquiry being no.66 of 2011 passed by the Ld. Chief Metropolitan Judge.

(D) Be pleased to grant any such or further order/s as it may deem fit by this Honble Court.

2. The facts giving rise to this writ application may be summarized as under;

2.1 The writ applicant is a joint owner of a Bungalow bearing No.270/5/A known as the Shanti Sadan Bungalow situated in the Navarangpura area of Ahmedabad. The complainant namely Sukhai Jagannath Chauhan was serving as a Gardener and was allotted a service quarter / Ordi / small room on humanitarian ground. The said Sukhai Jagannath Chauhan, after the death of the mother of the writ applicant, started harassing the writ applicant with an ulterior motive of forcing the writ applicant out of the Bungalow. The writ applicant therefore, requested the said Sukhai Jagannath Chauhan to vacate the small room as he was occupying it without any legal right. In such circumstances, the said Sukhai Jagannath Chauhan filed the HRP Suit No.1346/2008 and prayed for an interim injunction which was declined. Sukhai Jagannath Chauhan, therefore, filed an Appeal Fom Order No.14/2009 before the Appellate Bench of the Small Causes Court, Ahmedabad, which was came to be dismissed vide order dated 26.11.2009. Both the courts reached to a specific conclusion that the said Sukhai Jagannath Chauhan was not able to produce any documentary evidence to even remotely indicate that he was occupying the Ordi/one small room as the tenant. Subsequently, the HRP Suit No.1346 of 2008 also came to be dismissed.

2.2 Having not succeeded in getting the desired result, the complainant started to file criminal complaints one after the other. The first criminal complaint was filed on 16.03.2010 through the Power of Attorney holder Bhartiben C. Kansara who is a practicing advocate alleging that on 09.03.2010, the said Sukhai Jagannath Chauhan had gone to U.P., as his nephew died in an accident on 15.03.2010, the writ applicant and her sister broke open the lock of the room unauthorizedly and removed all his belongings and also destroyed the evidences that the said Sukhai Jagannath Chauhan was having in his possession. After recording the verification of the complainant, the Metropolitan Magistrate Court No.13 ordered a court inquiry under section 202 by order dated 16.02.2010 and, thereafter, upon examining the witnesses produced by the complainant, vide order dated 30.10.2010, dismissed the complaint under section 203 of the Criminal Procedure Code. A revision application was also filed before the Sessions Court being the Criminal Revision Application No.548/2010 which was came to be rejected by way of order dated 30.03.2011.

2.3 Pending the inquiry in the above mentioned first complaint, the said Sukhai Jagannath Chauhan, through his Power of Attorney Holder, resorted to filing another Criminal complaint in the court of the learned Metropolitan Magistrate Court No.13 on 30.04.2010 alleging that he was residing in the Bungalow in one room as a tenant and on 28.04.2010, at about 2.30 am., the writ applicant, her sister Prabhaben Bhatia and one Devendra Bhatia brought a Truck and on 15.03.2010 between 06.00 to 6.30 removed all his belongings and also took away all his documents and, thereafter, forced him out of the premises. The Metropolitan Magistrate Court No.13, Ahmedabad, vide order dated 30.04.2010, ordered inquiry under section 202 of the Criminal Procedure Code and directed the Police Inspector of the Navrangpura Police Station to inquire and report within 30 days. The Investigating Officer upon inquiry reported a civil dispute and accordingly submitted the report. However, the learned Magistrate issued process. The order of issuance of process came to be challenged by filing the Criminal Misc. Application No.13858/2011 before this Court. This Court, vide order dated 19.01.2012, issued notice making it returnable on 23.02.2012 and also granted the stay. This Court observed that in the earlier round of litigation, the complainant filed a private complaint which came to be dismissed and the challenge before the revisional court also failed and considering the report submitted by the Investigating Officer reporting the dispute is of a civil nature and the fact of civil proceedings being pending, no offence was made out and, therefore, the order of issuance of process was nothing but an abuse of the process of law. The order reads as under;

"Heard the learned advocate for the applicant and learned APP.

It is submitted that, in the earlier round of litigation, respondent No.2 filed a private complaint, which came to be dismissed by the learned Metropolitan Magistrate, Ahmedabad, vide order dated 30.10.2010 and, in a challenge before the Revisional Court, the order passed by the learned Magistrate came to be confirmed on 30.3.2011. It is further submitted that, considering the report submitted by the Investigating Officer in the present Enquiry Case No.32 of 2010, the nature of dispute, for which civil proceedings were pending, and no offence, as alleged, were made out, issuance of process by the learned Metropolitan Magistrate, Court No.13, Ahmedabad, by the impugned order dated 2.4.2011 below Exh.1 in Enquiry Case No.32 of 2010, is nothing but abuse of process of law.

Issue notice returnable on 23.2.2012.

Ad-interim relief in terms of paragraph 12(C).

Learned APP waives service on behalf of the State.

Direct service is permitted qua the private respondent."

2.4 The third complaint, thereafter, came to be filed on 08.09.2011, i.e., the impugned complaint once again by the Power of Attorney Holder, this time making allegations against the police officers of disobeying the directions of law with an intent to save the person from punishment or property from forfeiture, framing public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture, public servant in judicial proceedings corruptly making report contrary to law and by further alleging abatement and also section 145 of the Bombay Police Act. The writ applicant and her sister were also joined in the impugned complaint dated 07.09.2011 and thereafter, by recording the verification, the learned Magistrate issued process against the writ applicant for the offence punishable under sections 427, 447, 453, 461, 462 and 114 of the Indian Penal Code, wherein the learned Magistrate has also observed that earlier identical complaint had been dismissed and another complaint of identical nature has been kept for inquiry. Despite the same, process has been ordered on the same set of facts in the third complaint filed through the power of attorney holder who is a lady advocate.

3. I may quote the relevant observations of the civil court as under;

"Issue No. 1 & 2

The plaintiff in present suit has claimed protection of his tenancy right with respect to the suit premises. Under such facts it hereby requires to be recorded that under the provision of Sec.28 of the Bombay Rent Act, jurisdiction of the Small Cause Court at Ahmedabad can only be invoked, where the relations of tenant and landlord has even established on record, this means that in absence of any material satisfying the Court about relations of tenant and landlord between the parties then the Court cannot entertain any dispute between the contesting party with respect to any property. It is pertinent to note that mere possession of any property is not a base to entertain any dispute with regard to such property by the Small Cause Court, Ahmedabad. But in fact such possession must be occupied under the right of tenant under jurisdiction of the Small Cause Court at Ahmedabad. Now, in view of the above referred settled principle, evidence on record appreciated in its perspective.

12 It is an evidence of the power of attorney holder of the plaintiff Bhartiben vide Exh. 71, that the plaintiff is tenant of the suit premises since more than 55 years, they are working in the Kesari Hind Mill and was doing service of watchman and car washing work in the said bungalow and the property for residential purpose has been given in lieu of the work done by the plaintiff. It is further the statement of the power of attorney of plaintiff that after the death of Ganeshdas, defendants have stated to pay Rs.50/- as rent it was regularly paid by him but has not issued rent receipt. It is further stated that power of attorney of the plaintiff that possession of the suit premises has been taken by the defendant No.3, her husband and defendant No. 7 on date .15-3-10 by broken lock of the suit premises. In cross-examination plaintiffs power of attorney holder has admitted that at present possession of the suit premises is not with the plaintiff explaining that when plaintiff went their native on date 9-3-10 then on date 15-3-10 possession of the suit premises has been taken by the plaintiff. It is further the admission of the plaintiff that she has not made amendment in the suit and not claimed relief of restoration of the suit premises in the suit. It is the admission of the power of attorney of the plaintiff that plaintiff has not produced any evidence to show that plaintiff has paid rent to the defendants.

13 Above evidence of the plaintiff established on record that plaintiff is not in possession of the suit premises as well as has not made any amendment or claimed any relief in the suit proceedings for restoration of possession and also not produced any evidence towards alleged tenancy.

14 The plaintiff in support of his case has examined witness vide Exh. 76 Manubhai Ambalal Darji but in his examination in chief has stated that he know plaintiff who resides in the suit premises as tenant since many years, possession of whom has been taken on 15-3-10 but in cross- examination this witness has stated that plaintiff has stated him as he is tenant therefore, he know that plaintiff is tenant.

15 The evidence of the above witness only established plaintiffs possession over the suit premises prior to the disputed incident. Further, the witness knowledge regarding tenancy right of the plaintiff is due to information that plaintiff himself has gave to witness, whom knew plaintiff due to job of delivery of letters of courier.

16 The plaintiff has not produced any documentary evidence on record which can be read in evidence as per the rule of Evidence Act, there is no iota of evidence of which establish tenancy right of the plaintiff with respect to the suit premises and as mentioned hereinabove plaintiff is required to prove that he is inducted in the suit premises as legal tenant but plaintiff failed to even prima facie establish his tenancy right over the suit premises as tenant. Moreover, when it is specific statement of the power of attorney holder of the plaintiff and that possession at present is not with the plaintiff, though not made any amendment in the plant and claimed relief for restoration of possession of the suit premises. Mere filing criminal complaint and pendency of it, itself not sufficient to invoke jurisdiction of the Small Cause Court, Ahmedabad in absence of any material evidence regarding tenancy right over the suit premises and when the plaintiff at present not in possession of the suit premises, relief for permanent injunction restraining the defendant from taking possession of the suit premises as prayed in para 6(a) of the plaint at Exh. 1 become infructuous. Under this circumstances, plaintiff is not entitled to get permanent injunction as prayed for. So, the answer of issue No. 1 is given in the negative and pass following final order for issue Nos. 2 and 3.

ORDER

1 The present suit of the plaintiff is hereby dismissed. 2 In the facts and circumstances, parties shall bear their own costs.

3 Decree to be drawn accordingly.

Pronounced in the open Court today i.e.30th day of August, 2013.

(Nita H. Vasvelia)

Judge,

Code No. GJOO761

Small Cause Court No- 8

Ahmedabad

4. Having heard the learned counsel appearing for the writ applicant and the power of attorney of the original complainant, appearing in person, and having gone through the materials on record, the only question that falls for my consideration is whether the learned Magistrate committed any error in taking cognizance upon the third complaint and issue of process for the offence punishable under sections 427, 447, 453, 461, 462 read with section 114 of the Indian Penal Code.

5. On 22.06.2015, the following order was passed;

"Heard Mr.C.B. Upadhyaya, learned advocate for the petitioner.

It is submitted that the original complainant of the complaint has already expired and the present complaint has been filed by his Power of Attorney holder, who is consistently filing the frivolous complaints against the petitioner.

Issue Rule, returnable on 20.07.2015.

Mr.L.B. Dabhi, learned Additional Public Prosecutor, waives service of notice of Rule for respondent No.1- State of Gujarat.

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/> Interim relief in terms of Paragraph-10(C) is granted. Learned advocate for the petitioner may file an additional affidavit in the Registry. In addition to the normal mode of service, Direct Service for respondent No.2 through the concerned Police Station is also permitted." 6. The case on hand is one of gross abuse of the process of law at the end of the respondent No.2. Having regard to the history of the litigation narrated above, and the orders passed by the Civil Court, time to time, in my view, no case worth the name could be said to have been made out by the complainant The Magistrate, in my view, without any application of mind, proceeded to issue process for the offence of criminal trespass and other offences like dishonest or fraudulent removal or concealment of the property. 7. I take notice of the fact that the original complainant died long time back. The lady, appearing in person, claims to be the power of attorney. What are the considerations at the end of the power of attorney in this litigation is not known. The continuation of the criminal proceedings is nothing but an abuse of the process of law. 8. In the result, this application is allowed. The proceedings of the Criminal Case No.304 of 2012 pending in the court of the learned Metropolitan Magistrate, Court No.13, Ahmedabad is hereby quashed. Rule is made absolute to the aforesaid extent. Direct service is permitted." In view of the above, this application succeeds and is hereby allowed. The proceedings of the Criminal Case No.1290 of 2011 pending in the Court of the learned Metropolitan Magistrate, Court No.13, Ahmedabad, is hereby quashed. Rule made absolute. Direct service is permitted.
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