Kantibhai Naranbhai Patel vs State Of Gujarat

B.N. Karia, J

Notice of admission. Learned APP waives service of notice of admission for and on behalf of the respondents No.1 and 3. Considering the issue

raised in this appeal, no notice is required to be issued to the respondent no.2.

By preferring present appeal, appellant has sought following reliefs:

(A) Your Lordship may be pleased to admit and allow this appeal and after hearing be pleased to direct the public servant or subordinate officer to

lodge complaint against the respondent no.2.

(B) Pass any other and further order in the interest of justice and award the cost of this appeal including cost and expenses.

Heard learned advocate fort he appellant and learned APP for the respondents No. 1 and 3.

It was submitted by learned advocate for the appellant that respondent no.2 has filed false affidavit on oath and made false averments regarding

proceedings pending before Civil Court knowing that the proceedings are pending and the partnership firm has submitted an application to join as party

in the proceedings. It was further submitted that another false averments were made about not holding any agricultural or non agricultural land except

land in question. That, to obtain order from the respondent no.3 and relying upon false averments the Circle Officer made a report and relying upon

affidavit, the respondent no.3 passed an order to convert the land into non agricultural land. That, false averments made in the revenue proceedings

before the District Magistrate is an offence, and therefore, respondent no.3 can initiate proceedings as per the provisions of Section 195 of the Code

of Criminal Procedure (hereinafter referred to as “the Codeâ€) as false statement on oath was made during the proceedings before the Court.

That, except competent government servant, nobody can file complaint and no court can take cognizance of offence except complaint filed by the

public servant. It was further submitted that application given by the appellant to the respondent no.3 on 05th February 2020 and received by the

respondent no.3 on 15th February 2020, is yet pending and no decision has been taken by the respondent no.3 as prayed by the present appellant.

Hence, it was requested by learned advocate for the appellant to pass necessary order directing the respondent no.3 to lodge a complaint against the

respondent no.2 as requested.

Learned APP for the respondents no.1 and 3 has objected the submissions made by learned advocate for the appellant and while referring Annexure-

E order dated 01.02.2021 passed by the revenue authority, she has submitted that it is rightly come to the conclusion by the revenue authority that

revision application was not maintainable before the competent authority and hence, this appeal is not maintainable and therefore, learned APP for the

respondents No.1 and 3 has requested to dismiss present appeal.

Having heard learned advocate for the appellant and learned APP for the respondents No.1 and 3, it appears that on 5th February 2020, present

appellant preferred an application to take necessary action under Section 340 of the Code to initiate inquiry and lodge a complaint against respondent

no.2 for the offence punishable under Sections 177, 181, 182, 193, 146, 196, 199 and 200 of the Indian Penal Code for filing false affidavit and getting

order from the learned Collector at Valsad. As per the averments made by present appellant in his application, false statements on oath were made by

the respondent no.2 that in respect of the land in question, no court case is pending before the Civil Court or before the revenue court. The appellant

has narrated some instances of the civil case pending before the court at page No. 17 and 18 of the petition. Further facts are also averred by the

present appellant in his application showing that false statements were made by the respondent no.2 before the court. As per the submissions made by

learned advocate for the appellant as application dated 05.02.2020 was not decided, he preferred revision application before the higher authority,

wherein as per the reply given to appellant on 1st February 2021, the higher authority had no jurisdiction to entertain the revision application to proceed

under Section 340(2) of the Code and therefore, it was returned back. As per submissions of learned advocate for the appellant, application

Annexure-D dated 5th February 2020 preferred by the present appellant is still pending before the respondent no.3.

Considering the statement made by learned advocate for the appellant at the bar, let the respondent no.3 be directed to decide the application dated

5th February 2020 in accordance with following provisions of Section 195 and 340 of the Code and may arrive at a correct conclusion as deemed fit.

According present appeal is hereby allowed with a direction to respondent no.3 to decide the application dated 05.02.2020 filed by the appellant in

accordance with law as observed by this court within a period of 2(Two) months from the date of receipt of this order. Notice stands discharged.

Registry to communicate copy of this order to the respondent no.3.