PRADIP N SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Criminal Misc. Application has been filed by the applicant- original accused under section 482 of the Code of Criminal Procedure seeking prayer to quash and set aside the complaint/FIR being IC.R.No.33/2011 registered with Tankara Police Station, Rajkot (Rural) for the offences under sections 409, 219 and 114 of the Indian Penal Code on 12.05.2011.

(2.) The short facts as culled out from the application and also from the documents on record are that the respondent no.2- complainant, who was the Mamlatdar of village Tankara at the relevant time had lodged an FIR on behalf of the State on 12.05.2011, alleging inter alia, that the Government land bearing survey No.2 admeasuring 65 acres, situated at Village Anandpara was allotted to one Shri D.J.Mehta and others on 19.05.1970 by way of Santhni for personal cultivation as per the entry made in village Form No.VI. Since, the said allottees were not staying in the village and were not cultivating the land personally, the then Deputy Collector, Morbi registering the case as Sharatbhang Case No.40/2000, forfeited the land in favour of the Government vide the order dated 15.11.2000. The said allottees/ beneficiaries in the year 2007, therefore had filed an appeal before the then Collector, Rajkot (i.e. the present applicant). In the said appeal, the then Collector i.e. the present applicant set aside the said order of the Deputy Collector and directed to restore the land in the name of the said beneficiaries applicants vide the order dated 27.03.2008. The said order passed by the Collector was taken into revision by the Principal Secretary, Revenue (Appeals), Ahmedabad, who set aside the order of the Collector and directed to enter the name of the Government in the revenue records. According to the complainant, the applicant, who was the District Collector, Rajkot at the relevant time, had knowing fully well that the said beneficiaries/ appellants were staying abroad and not cultivating the land as per the order of allotment, and therefore were not eligible to get back the land, set aside the order passed by the Deputy Collector, with a view to unduly favour the appellants of the said Appeal and that too without verifying the genuineness of the power of attorney holder, who had filed the appeal on behalf of the legal heirs of the deceased appellants, Mr. Mehta and others. Thus, the Collector (i.e. the present applicant) acting against the interest of the Government and with a view to unduly favour the appellants, had passed the order with malicious intention, and thereby had committed the offences under section 409, 219 and 114 of the Indian Penal Code. The said FIR was registered as I-C.R.NO.33/2011 against the present applicant and others whose names may be disclosed during the investigation. The applicant therefore has filed the present application for quashing of the said FIR. This Court vide the order dated 22.06.2011 had issued "Rule" and granted interim relief, in terms of Para No.8(C) i.e. staying the investigation/further proceedings of the impugned FIR.

(3.) Learned Advocate Mr.I.H.Saiyed appearing with learned Advocate Mr.Narendra L. Jain for the applicant vehemently submitted that the complaint was maliciously filed by the respondent no.2 on behalf of the State Government, as the brother of the applicant was not in the good books of the political leaders. According to him, the police department was bent upon harassing the applicant by registering the cases one after the other against the applicant and his brother. As regards the allegations made in the complaint, he submitted that the order passed by the applicant on 27.03.2008 was taken in suo-motu revision by the State Government and was set aside by the Special Secretary, Revenue Department vide order dated 14.09.2009, which order was challenged by the original appellants i.e. beneficiaries of the land by filing the Special Civil Application Nos.14996/2012 and 11111/2009. The said petitions came to be allowed by this Court vide order dated 02.09.2013, whereby the order dated 14.09.2009 passed by the Special Secretary, Revenue Department was set aside on the ground that the said petitioners were not heard in the Revision Application and in the Sharatbhang Case No.40/2000. The High Court therefore, remanded the matter to the Deputy Collector for deciding it afresh in accordance with law. He further submitted that from the bare reading of the said FIR, no prima facie case either under section 409 or under section 219 of the Indian Penal Code is made out, inasmuch as the applicant had passed the order in discharge of his duties in the quasi judicial proceedings. Mr.Saiyed also relied upon the decision of the Supreme Court in the case of Himachal Pradesh Cricket Association and Anr. Vs. State of Himachal Pradesh and Ors. in Criminal Appeal Nos.1258 to 1259 of 2018 decided on 02.11.2018 to submit that no criminal act on the part of the applicant was made out and the allegations did not constitute any offence against the applicant. He also submitted that the persons in whose favour the applicant had passed the order have not been arraigned as the accused in the case. According to him, the impugned complaint having been filed misusing the process of law, deserves to be quashed and set aside.