NIRAJ DAMODARPRASAD PODDAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Special Criminal Application is filed under section 482 of the Cr.P.C., 1973 r/w Articles 226 and 227 of the Constitution of India for seeking quashment of the complaint bearing C.R.No.I-70 of 2010 registered with Palsana Police Station, District - Surat as well as charge-sheet filed pursuant thereto as also the order dated 16.3.2011 passed by the learned Judicial Magistrate First Class.

(2.) The case, in brief, submitted by the petitioners, who are original accused Nos.3 and 4, is that some parcel of land stated in the memo of petition are situated at village Palsana, Taluka - Palsana, District - Surat, precisely an agricultural land bearing Revenue Survey Nos.539/1, 539/2 and 539/3 demonstrated in Para.3.1 were jointly owned, occupied and possessed and in cultivation of one Durgaben wd/o Dhirubhai Raghunathji, Thakorbhai Ambelal Desai, Ratilal Ambelal Desai and Ishwarbhai Ambelal Desai. These land owners had given special power of attorney in favour of Damodarprasad Tormal Poddar - father of petitioner No.1 on 16.10.1993. The aforesaid owners also entered into an agreement to sell with father of petitioner No.1 on 21.10.1993. Simultaneously, as per the say of the petitioners, these land owners have entered into an irrevocable power of attorney with the said power of attorney. With the aid and assistance of said power of attorney, Damodarprasad Tormal Poddar had given an application on 24.10.1994 for seeking non-agricultural permission with respect to land and submitted to the revenue department of District Panchayat.

(3.) Mr.N.V.Gandhi, learned counsel appearing for the petitioners has submitted that filing of complaint is nothing but, a coercive step aimed at harassing the petitioners and though there is no illegality of any nature nor offence as alleged is committed, just with a view to apply pressure at the behest of the company referred to above, the respondent No.2 has utilized himself a leaver, built up pressure against the petitioners. This action therefore tantamounts to be a sheer abuse of process of law. Mr.Gandhi has submitted bare reading of the FIR is even satisfying the basic ingredients of the offence alleged and therefore, since prima facie elements which are required to attract the offence as alleged are missing, the complaint deserves to be entertained. Mr.Gandhi has further submitted that at the best, from the overall circumstance it is reflecting from the papers contained in the charge-sheet that except petitioners being witness in the revenue proceedings, there appears to be no role which would attract the offence alleged. It has also been contended that ultimately, the NA permission has been granted by the authority, mutation entry has also been effected after taking note of registered sale transaction and further Mr.Umesh Joshi had nothing to do with actual land in question and therefore, suo-motu exercise of power which is exercised had remained the subject matter of proceeding before the State authority which at a time when petition came to be entertained, were pending. Mr.Gandhi has further drawn the attention of the Court that said proceeding now came to be disposed of vide judgment and order dated 23.1.2017 recently, a copy whereof is served to the learned APP appearing for the respective parties and tendered before the Court wherein, after examining and after hearing at length, the Collector, Surat was pleased to restore the possession and the said order has rectified the entire situation which was erupted pursuant to the suo-motu exercise of power by the Mamlatdar and therefore, there remains nothing against the petitioners. There also remains no irregularity and the role is abundantly clear which would constitute any offence and therefore, Mr.Gandhi has contended that this legal development has, on the contrary, fortified the stand taken by the petitioners in the present proceedings and therefore also, to allow the criminal proceedings to precipitate further and continue will amount to abuse of process of court machinery and therefore, requested the Court to quash the complaint and charge-sheet filed pursuant to the same.