Partly allowed

Chhatrapalsinh @ Satubha Kalyansinh Sarvaiya v. State of Gujarat

Gujarat HC6 Dec 2013SCR.A/2321/2008

Case brief

AI extract

What is this about?

This High Court quashed a First Information Report (C.R. No. I-85 of 2005) registered for offences of criminal trespass after holding that the attachment order on the petitioner's land had been cancelled. The Court declined to award compensation for the petitioner's brief detention, directing police authorities to release persons arrested for bailable offences immediately without court appearance.

What did the court decide?

The First Information Register No. I-85 of 2005 is quashed and set aside; the Rule is made absolute.

Chhatrapalsinh @ Satubha Kalyansinh Sarvaiya Vs State of… — Quashing and FIR | Gujarat HC (2013)

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R/SCR.A/2321/2008 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CRIMINAL APPLICATION NO. 2321 of 2008

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.G.URAIZEE

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

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5 Whether it is to be circulated to the civil judge ?

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CHHATRAPALSINH @ SATUBHA KALYANSINH SARVAIYA....Applicant(s) Versus

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STATE OF GUJARAT & 3....Respondent(s)

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Appearance:

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MR AD SHAH, ADVOCATE for the Applicant(s) No. 1 MR NEERAJ SONI APP for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 - 4

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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE

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Date : 06/12/2013

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ORAL JUDGMENT

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Page 1 of 8

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R/SCR.A/2321/2008 JUDGMENT

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Heard learned advocate Mr. A.D. Shah for the petitioner and learned A.P.P. Mr. Neeraj Soni for the respondents.

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The facts in brief giving rise to the present petition are that a proclaimation dated 15^th March 2003 under Section 82 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code' for short) was issued against the petitioner and the petitioner was directed to remain present in person before the Bhavnagar A' Division Police Station within thirty days. The petitioner did not comply with the proclamation, and therefore, the investigating officer moved an application dated 21^st April 2003 under Section 83 of the Code for attachment of the properties situated at village Nana Khokhra belonging to the petitioner. The learned Magistrate, Bhavnagar, by his order dated 22^nd April 2003 accepted the application of the investigating officer, and the property described in the application was ordered to be attached, and the District Magistrate was directed to carry out the formalities of attachment. Accordingly, the District Magistrate, Bhavnagar, by proclamation dated 28^th April 2003 under Section 83 of the Code directed the Mamlatdar, Ghogha, to attach the properties. It appears that thereafter the District Magistrate has by yadi dated 3^rd May 2003 lifted the attachment as it was issued inadvertently/by mistake. The petitioner had informed respondents Nos. 2, 3 and 4 regarding the lifting of the attachment order by the District Magistrate by letter dated 14^th March 2008. It appears that a First Information Report being C.R. No. I-85 of 2005 dated 12^th August 2005 for offences punishable under Section 447 and 114 of the Indian Penal Code came to be registered against the petitioner for having entered into the attached agricultural land. The petitioner by letter dated 25^th August 2008 informed respondents Nos. 2 and 4 to cancel the said First Information Report as the District Magistrate had lifted the attachment by order dated 3^rd May 2003. No heed was paid to the letters of the petitioner by respondents Nos. 2 and 5, and the petitioner came to be arrested on 3^rd September 2008. He was produced before the court of learned Judicial Magistrate First Class, Ghogha on 4^th September 2008 and was released on bail. The petitioner has made the following prayer in the present petition under Articles 226 and 227 of the Constitution and Section

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Page 2 of 8

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R/SCR.A/2321/2008 JUDGMENT

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482 of the Code:

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“(C) The Hon'ble Court may be pleased to quash and set aside the FIR in Crime Register No. I-85 of 2005 registered at Ghogha Police Station.”

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Learned advocate Mr. A.D. Shah has strenuously submitted that the attachment order which was passed by the learned Magistrate on 22^nd April 2003 attaching the share of the petitioner in the agricultural land jointly held by him with other co-owners was later on lifted by the District Magistrate by his order dated 3^rd May 2003. Since the attachment was lifted, the petitioner was enjoying possession of the agricultural land and was doing agricultural activities thereon. The respondent No.4 after almost two years registered the First Information Report against the petitioner for the offences punishable under Sections 447 and 114 of the Indian Penal Code, though immediately after lifting of the attachment order respondent No.4 was informed by letter dated 14^th March 2008 that the District Magistrate has lifted the attachment. Therefore, it is urged that the present petition be accepted and the First Information Report (Annexure C) may be quashed. It is further urged that compensation as may be deemed fit in the facts and circumstances of the case may be awarded to the petitioner because he was arrested in connection with a bailable offence and was not released on bail by respondent No. 4 himself, and instead, he was produced before the court on the next day, when he was released on bail, thereby he had to remain in police custody for about 24 hours. He has relied upon reported judgment of the Privy Council in the case of Sinnasamy Selvanayagam v. The King reported in 52 Cr.L.J. 1951 and the Supreme Court in the case of Bhim Singh v. State of J and K. reported in AIR 1986 SC 494 .

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On the other hand, learned A.P.P. Mr. Neeraj Soni would submit that the District Magistrate had modified the order of the learned Magistrate to the extent not to compel the presence of the petitioner accused only, and the attachment of land was not lifted by the District Magistrate. He has further submitted that the District Magistrate, Bhavnagar was not competent to modify or vary a judicial

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Page 3 of 8

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R/SCR.A/2321/2008 JUDGMENT

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order passed by the Judicial Magistrate First Class, Bhavnagar. He, therefore, would submit that respondent No.4 has not committed any illegality in arresting the petitioner and there is no substance in the petition and the petition deserves to be dismissed.

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The undisputed facts as emerging from the record are that by order dated 22^nd April 2003, the share of the petitioner in jointly held agricultural land was ordered to be attached by the learned Judicial Magistrate First Class, Bhavnagar, for non-appearance of petitioner pursuant to proclamation under Section 82 of the Code.

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It is also admitted fact that vide proclamation dated 28^th April 2003 issued by the District Magistrate, the agricultural land belonging to the petitioner came to be attached, but the attachment order was cancelled by the District Magistrate himself by his order dated 3^rd May 2003 as according to the District Magistrate it was issued inadvertently. This fact was brought to the notice of the respondents Nos. 2 to 4 by the petitioner. Still however, after two years of cancellation of attachment order, respondent No.4 lodged the First Information Report against the petitioner, though the offence alleged against the petitioner was one under Section 447 of the Indian Penal Code, which is a bailable offence. Respondent No.4 did not release the petitioner on bail and instead kept him in custody before producing the petitioner before the Magistrate. The petitioner came to be released on bail by the Magistrate and thereby the petitioner had to remain in jail, though he had committed no offence and the alleged offence against him was bailable offence.

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The submission of learned A.P.P. Mr. Soni that the attachment of the land was not lifted and the District Magistrate has modified the order to the limited extent of not compelling the presence of the petitioner cannot be countenanced in as much as the order dated 3^rd May 2003 of the District Magistrate is very clear and is not susceptible to two interpretations. The District Magistrate has in unequivocal terms has observed in the order that the attachment order was issued

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Page 4 of 8

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R/SCR.A/2321/2008 JUDGMENT

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from his office inadvertently/by mistake. Therefore, the order of the District Magistrate makes it explicitly clear that the whole order of attachment was cancelled. There is no whisper in the order that the order dated 28^th April 2006 issued from the office of the District Magistrate was for the twin purposes, i.e. for compelling the presence of the petitioner on one hand and for attachment of the properties on the other. The proclamation dated 28^th April 2003 simply directs the Mamlatdar to attach the property of the petitioner. It is also very clear from the record that the order of the Collector cancelling the attachment of the property of the petitioner was communicated to respondents Nos. 2 to 4 by the petitioner himself, but thereafter, what prompted respondent NO.3 to lodge a complaint almost after two years is not explained in the affidavit of respondent No.3.

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Another contention of learned A.P.P. Mr. Soni that the District Magistrate was not competent to modify or vary the order passed by the learned Judicial Magistrate First Class is also without merit. Even if this submission is accepted, the fact remains that no steps were taken by the respondent No.3 or respondent No.4 for getting it cancelled by bringing it to the notice of the learned Magistrate who had passed the initial order dated 22^nd April 2003. The respondent NO.3, who has lodged the First Information Report and respondent NO.4, who has effected the arrest of the petitioner, in fact, accepted and acquiesced the order passed by the District Magistrate. Therefore, the submission of the learned A.P.P. Mr. Soni that the District Magistrate had no authority or jurisdiction to interfere with the order passed by the learned District Magistrate cannot be accepted.

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Learned advocate Mr. A.D. Shah relied on the judgment of the Privy Council in the case of Sinnasamy (supra) and submitted that there is a difference between the criminal trespass and civil trespass. According to his submission, by remaining in the land which was earlier attached by the District Magistrate pursuant to the order passed by the Magisterial court, the petitioner had not caused any annoyance or mischief to anybody, and therefore, the act of the

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Page 5 of 8

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R/SCR.A/2321/2008 JUDGMENT

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petitioner would not come within the sweep of Section 447 of the Code. It appears that the facts of the case before the Privy Council and the facts in the present case are different. In the present case, the admitted position is that the proclaimation of attachment was issued by the District Magistrate, which was later on cancelled by the District Magistrate himself, is, according to him, was inadvertently/by mistake, and therefore, after cancellation of the proclaimation under Section 83 of the Code, the occupation of the petitioner on his own land cannot be said to be an illegal occupation or entry thereon. Therefore, the judgment of the Privy Council would have no application to the facts of the present case.

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So far as the other judgment of the Supreme Court cited by Mr. A.D. Shah in the case of Bhim Singh (supra) is concerned, the petitioner of that case was that he was arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded and such invasion of the constitutional right cannot be washed away or washed away by his being set free. Therefore, the petitioner had sought appropriate compensation for his malicious and mischievous detention. In this case before the Supreme Court, the petitioner was arrested pursuant to a First Information Report lodged against him for offences punishable under Section 153A of the Indian Penal Code for having delivered inflammatory speech at a public meeting. It further appears from the judgment of the Supreme Court that the remand of the petitioner was obtained without producing him before the Magistrate and thereby remand was obtained in flagrant violation of the law. In the backdrop of these factual scenario, the Supreme Court deprecated the practice adopted by the police and awarded compensation. The relevant observations in this regard are extracted below:

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“When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first

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Page 6 of 8

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R/SCR.A/2321/2008 JUDGMENT

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respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/- within two months from today. The amount will be deposited with the Registrar of this court and paid to Shri Bhim Singh.”

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In the present petition, the petitioner has come with a grievance that there was no justification for registering First Information Report against him for the offences punishable under Section 447 of the Code as the proclaimation of attachment of his land was cancelled by the District Magistrate. Still however, First Information Report was registered two years after cancellation of the attachment order. Not only that though the offence registered against the petitioner was a bailable one, he was not released on bail immediately, though he was ready to offer bail, and instead, he was produced before the Magistrate, who released him on bail. Therefore, the act of registering the First Information Report and arresting him pursuant to the First Information Report was illegal, for which the petitioner should be appropriately compensated and the First Information Report should be quashed.

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Documents available on the record of the petition makes it explicitly clear that there was no justification to register the First Information Report against the petitioner for the offences punishable under Section 447 of the Code. Still however, the offence came to be registered. Not only that, the offence under Section 447 being bailable one, the petitioner ought to have been released on bail forth with by the investigating officer, but instead, he was arrested and produced before the Magistrate.

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In view of these peculiar facts, the First Information Report registered against the petitioner cannot be allowed to remain, and it is required to be quashed and set aside. So far as the complaint of the petitioner that he was not released on bail by respondent No.3, though the offence was bailable, but he had to remain in police custody till he was released on bail by the learned Magistrate, and therefore, he should be properly compensated is concerned, it appears that day-in and day-out police authorities are arresting citizens of having committed a

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Page 7 of 8

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R/SCR.A/2321/2008 JUDGMENT

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bailable offence, but they are not releasing them on bail by the investigating officer, though such offenders are ready and willing to offer bail, such offenders are produced before the Magistrates. Since the offences alleged against the accused-persons are bailable one, the Magistrate immediately releases them on bail, but the act on the part of the police authority of not releasing the offenders arrested for non-bailable offenders unnecessarily add to the burden on the magisterial courts, which pass mechanical orders of bail.

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present case is a fit case for awarding compensation, but this court is desisting itself from passing any order of compensation in favour of the petitioner. Instead, the authorities concerned, are directed to look into the conduct of respondent No.3 and respondent No.4 and also to ensure that in all bailable offences, the investigating officers are issued with necessary directions to release such offenders on bail forthwith without producing them before the Magistrate. This will serve the twin objects, firstly of saving the petty offenders from the expenses of hiring a lawyer for getting bail and secondly the magisterial court will be relieved of the unnecessary and unproductive burden of passing mechanical bail orders for bailable offences.

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With the aforesaid observations, the present petition is allowed in part. The First Information Report being C.R. No. I-85 of 2005 dated 12^th August 2005 registered with Ghogha Police Station against the petitioner for offences punishable under Sections 447 and 114 of the Indian Penal Code is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.

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(A.G.URAIZEE,J)

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sndevu

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Chhatrapalsinh @ Satubha Kalyansinh Sarvaiya v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Chhatrapalsinh @ Satubha Kalyansinh Sarvaiya v. State of Gujarat

Case brief

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What did the court decide?

What the court decided

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