Madhya Pradesh High Court
Manisha Mishra vs The State Of Madhya Pradesh on 6 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6th OF MAY, 2024
MISC. CRIMINAL CASE No. 7431 of 2020
BETWEEN:-
SHARAD AGARWAL S/O LATE SHRI
BABULAL AGARWAL, AGED ABOUT
48 YEARS, OCCUPATION: BUSINESS K
H -4 GOPAL VIHAR DAMOH NAKA
JABALPUR P.S. KOTWALI JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY DR.RASHMI PATHAK - ADVOCATE)
AND
1. THE STATE OF MADHYA
PRADESH THR STATION HOUSE
OFFICER POLICE STATION
CIVILLINE CHHATARPUR THR
STATION HOUSE OFFICER
POLICE STATION CIVILLINE
CHHATARPUR (MADHYA
PRADESH)
2. THE SUPERINTENDENT OF
POLICE CHHATARPUR S.P.
OFFICE CHHATARPUR
(MADHYA PRADESH)
3. THE SUB DIVISIONAL OFFICER
(REVENUE) CHHATTARPUR
S.D.M. OFFICE CHHATARPUR
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 AND 2/STATE BY SHRI K.S.BAGHEL - GOVT. ADVOCATE)
(RESPONDENT NO.3 BY SHRI SANKALP KOCHAR - ADVOCATE)
MISC. CRIMINAL CASE No. 9859 of 2020
2
BETWEEN:-
1. ALPANA AWASTHI W/O SHRI
LAXMI PRASAD AWASTHI
R/O PANNA ROAD RADIO
COLONY CHHATARPUR M.P.
(MADHYA PRADESH)
2. PREM KUMARI GUPTA W/O
SHRI PREM CHAND GUPTA,
AGED ABOUT 62 YEARS,
OCCUPATION: HOMEMAKER
WARD NO. 21 SHUKLANA
MUHHALLA CHHATARPUR
P.S CITY KOTWALI
(MADHYA PRADESH)
3. LAXMI PRASAD AWASTHI
S/O LATE SHRI DHANIRAM
AWASTHI, AGED ABOUT 65
YEARS, OCCUPATION:
BUSINESS P.S CIVIL LINES
CHHATARPUR R/O PANNA
ROAD RADIO COLONY
CHHATARPUR M.P.
(MADHYA PRADESH)
.....PETITIONER
(BY DR.RASHMI PATHAK - ADVOCATE)
AND
1. THE STATE OF MADHYA
PRADESH THR. STATION
HOUSE OFFICER POLICE
STATION CIVIL LINES
CHHATARPUR M.P.
(MADHYA PRADESH)
2. SUPERINTENDANT OF
POLICE POLICE
HEADQUARTERS S.P OFFICE
CHHATARPUR (MADHYA
PRADESH)
3. SUB DIVISIONAL OFFICER
3
REVENUE DEPARTMENT
S.D.M OFFICE CHHATARPUR
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 AND 2/STATE BY SHRI K.S.BAGHEL - GOVT. ADVOCATE)
(RESPONDENT NO.3 BY SHRI SANKALP KOCHAR - ADVOCATE)
MISC. CRIMINAL CASE No. 12289 of 2020
BETWEEN:-
1. MANISHA MISHRA W/O
VIJENDRA KUMAR MISHRA,
AGED ABOUT 44 YEARS,
OCCUPATION: HOMEMAKER
CHOUBEY COLONY, WARD
NO. 30 CIVIL LINE
CHHATARPUR (MADHYA
PRADESH)
2. RICHA BARASIYA W/O
MAHESH KUMAR BARASIYA,
AGED ABOUT 48 YEARS,
OCCUPATION: HOMEMAKER
WARD NO. 30/38 JAWAHAR
ROAD AKASHWANI TIRAHA
CHHATAPRUR (MADHYA
PRADESH)
.....PETITIONER
(BY DR.RASHMI PATHAK - ADVOCATE)
AND
1. THE STATE OF MADHYA
PRADESH THROUGH
STATION HOUSE OFFICER
CIVIL LINES , CHHATARPUR
(MADHYA PRADESH)
2. SUPERINTENDENT OF
POLICE CHHATARPUR S.P.
OFFICE CHHATARPUR
(MADHYA PRADESH)
4
3. SUB DIVISIONAL OFFICER
(REVENUE) S.D.M. OFFICE
CHHATARPUR (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 AND 2/STATE BY SHRI K.S.BAGHEL - GOVT. ADVOCATE)
(RESPONDENT NO.3 BY SHRI SANKALP KOCHAR - ADVOCATE)
MISC. CRIMINAL CASE No. 17457 of 2020
BETWEEN:-
RAMSWAROOP CHOUBEY S/O
RAMNATH BRAHMAN, AGED
ABOUT 60 YEARS, OCCUPATION:
AGRICULTURISTS VILLAGE
KUDARI TEHSIL AND
DISTT.CHHATARPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI VIJAY PANDEY - ADVOCATE)
AND
THE STATE OF MADHYA
PRADESH THROUGH PS CIVIL
LINE DISTT.CHHATARPUR
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS/STATE BY SHRI K.S.BAGHEL - GOVT. ADVOCATE)
These applications coming on for admission this day, the court
passed the following:
ORDER
1. Since question of fact and law are identical in all the cases, therefore, M.Cr.C.No.7431/2020, M.Cr.C.No.9859/2020, M.Cr.C.No.12289/2020, and M.Cr.C.No.17457/2020 are being decided by this common order.
5For the sake of convenience, facts of M.Cr.C.No.7431/2020 shall be taken into consideration.
2. This application under section 482 Cr.P.C. has been filed seeking the following reliefs :
i) It is therefore prayed that this Honourable Court may kindly be pleased to quash/ delete the name of present petitioner in FIR No.45, dated 30.1.2020 registered by Police Station Civil Lines, Chattarpur MP (annexure A-1) and also to quash all subsequent proceedings against the present applicant in the interest of justice.
ii) Pass orders for other relief/ directions, as deemed fit and proper looking to the facts and circumstances of the case.
iii) Allow the petition with cost.
3. It is submitted by counsel for the applicant that FIR in crime No.45/2020 has been registered at Police Station Civil Lines, District Chattarpur for offence under sections 420, 467, 468, 469 and 471 of IPC.
4. Challenging the impugned FIR, it is submitted by counsel for the applicant that on the basis of written order passed by S.D.M. dated 30.1.2020, Tahsildar, Chattarpur made a written complaint alleging inter alia that in the year 1943-44, Khasra number 336 area 5.261 hectares was recorded as forest in the revenue record. It continued till 1952-53. In the year 1971-72 by order dated 7.1.1972 passed in revenue case No.133/A- 19/1971-72, a temporary patta for a period of five years was granted to Bilson Tirkey. Thereafter, the period of said Patta was never extended. It was alleged that after the expiry of Patta, name of the State Government should have been recorded in the revenue records. In the year 1983-84 co-accused No.1 Ramswarup, co-accused No.2 Sarmandevi and co- accused No.3 Ramsewak got their names mutated in the revenue records 6 as Bhumi Swami, without there being any order by the revenue authority and a forged entry was made in column No.12 of Khasra Panchshala of the year 1983-84 that "vkns'k Jheku rglhynkj egksn; ds vkns'k Øekad ds vuqlkj HkwfeLokeh ?kksf"kr rFkk foØsrk [kkrsnkj fcfy;e vyhcDl us dzsrk x.kksas dks [kljk uacj 336/1 jdck 1.754 gs-] yxkuh 5.33 ljeu nsoh iq=h nsoh izlkn ds uke rFkk 336/2 jdck 1.754 gs- yxkuh 8.34 jkeLo:i ru; jkeukFk ds uke rFkk 336/2 jdck 1.752 gs- yxkuh 8.33 jkelsod ru; jkeI;kjs ds uke Loh--r gqvkA
5. It was submitted that, in fact, no such order was passed by any revenue authority. Thereafter, following sale-deeds were executed by following accused persons :-
Accused/Vendor Accused/Vendee Khasra No. Area Sarman Devi Sheikh Jahoor 336/1A 1.754 Mansoor hectares Ramswaroop Santosh Kumar 336/1B 0.134 336/1B hectares 0.068 hectares Sheikh Jahoor Premchand Gupta 336/1A 1.754 Mansoor hectares Santosh Kumar Prem Kumari, w/o 336/1B Premchand Gupta & Alpana Awasthy Ram sewak Laxmi Pd. Awasthy Premkumari Smt.Richa 336/1B 0.202 Barsaiyan hectares Premchand Smt.Richa 336/A 1.754 Gupta Barsaiyan hectares Smt.Richa Manisha Mishra 3 sale-deeds 1.354 Barsaiyan hectares Laxmi Pd. Sharad Agrawal 336/1C 1.753 Awasthy hectares 7 Manisha Mishra Sharad Agrawal 336/1/ka/2 1.754 hectares Sharad Agrawal Prakhar Samajothan Pragati Samiti through Ajay Singh Bhadoriya Prakhar Ajay Kumar Tiwari 336/1/1/ka/2, 1.254 Samajothan hectares Pragati Samiti 336/1/c 1.240 hectares 336/1/ka/2 0.53 hectares
6. Challenging the FIR in question, it is submitted by counsel for the applicant that respondent No.3 S.D.M. passed an order on 30.1.2020 by giving reference to order dated 25.1.2020 in Revenue Case No.79/A-6- A/2019-20 of village Kadari and requested the S.P. Chattarpur to register an FIR for offence under sections 420, 467, 468, 469, 470 and 471 IPC. Thereafter, Shri Abhay Singh Bhadoriya, one of the co-accused, filed an application for grant of anticipatory bail. The said application was allowed by the A.S.J. Chhatarpur in Bail Application No.49/2020 and by order dated 3.2.2020 Shri Abhay Singh Bhadoriya was granted anticipatory bail. Since the respondent No.3 had personal interest in the property, therefore, he himself arranged for an attack on himself and lodged an FIR and since it was a question of attack on a Government official, therefore, the police party immediately came into action and it was found that it was a self-sponsored attack by respondent No.3 and accordingly, a press note was also issued by the police. It is submitted that the S.D.M has been made an accused in the said FIR for arranging a self-sponsored attack.
87. By referring to the order passed by the Additional Collector, Chhattarpur dated 14.10.2019 in case No.29/A-21/2019-20, it is submitted by counsel for the applicant that the sale-deeds were held to be valid.
8. It was submitted by counsel for the applicant that the S.D.M. before passing an order dated 25.1.2020, as mentioned in his letter dated 30.1.2020, did not give any opportunity of hearing to the applicant. The S.D.M. had lodged the FIR with an ulterior motive. The order dated 14.10.2019 passed by Additional Collector, District Chattarpur in revenue case No.29/A-21/2019-20 has attained finality and thus the sale deeds executed by different persons cannot be said to be invalid. The S.D.M. Chattarpur himself was involved in antisocial activities by self- sponsored attack on himself and, therefore, he is facing trial.
9. It is submitted by counsel for the applicant that the Supreme Court in the case of Md. Ibrahim Vs. State of Bihar and another, reported in (2009) 8 SCC 751, has elaborately dealt with an aspect that nowadays the parties are trying to convert the criminal case into civil litigation and has also dealt with the aspect that under what circumstances the offence under sections 467, 468, 469, 470 and 471 I.P.C. would be made out.
10. Per contra, the application is vehemently opposed by counsel for the respondent No.3. It is submitted that the applicant has not claimed that any sale deed was ever executed by Bilson in favour of Ram Sewak, Sarmandevi and Ram Swarup and it has also not been submitted that the revenue entries in the name of Sarman Devi, Ramswarup and Ramsevak were not forged. Once Ram Sewak, Sarman Devi and Ram Sarup had fraudulently got their names recorded in the revenue records, then it is well established principle of law that the seller cannot transfer a title 9 better than what he himself was having. Once Ramswarup, Sarmandevi and Ram Sewak did not get any title in the land, therefore, further sale deeds by them are false. It is further submitted that in the sale deeds, it was specifically mentioned that it was not a Government land which was false even to the knowledge of accused persons. The counsel for respondent no.3 has relied upon judgment passed by the Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, reported in 2021 SCC Online 315.
11. Counsel for the State has also supported the submissions made by counsel for the respondent No.3.
12. Heard the learned counsel for the parties.
"Whether allegations of bias/malafide actions levelled against the S.D.M. can be considered or not for the reason that he has not been impleaded as respondent in personal capacity?"
13. The moot question for consideration is that if an allegation of bias is made against a person without impleading him as a party, then whether such submission can be considered or not?
14. The Supreme Court in the case of State of Bihar and Another Vs. P.P. Sharma, reported in 1992 Supp (1) Supreme Court Cases 222 has held as under:-
55. It is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo nomine as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. Admittedly, both R.K. Singh and G.N. Sharma were not impleaded. On this ground alone the 10 High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them.......
15. The Supreme Court in the case of Federation of Railway Officers Association Vs. Union of India reported in AIR 2003 SC 1344 has held as under :
20......Allegations regarding mala fides cannot be vaguely made and it must be specified and clear. In this context, the concerned Minister who is stated to be involved in the formation of new Zone at Hazipur is not made a party who can meet the allegations.
16. The Supreme Court in the case of J.N. Banavalikar Vs. Municipal Corporation of Delhi, reported in AIR 1996 SC 326 has held as under:
21......Further, in the absence of impleadment of the junior doctor who is alleged to have been favoured by the course of action leading to removal of the appellant and the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i.e. malice in fact should not be countenanced by the Court.
17. The Supreme Court in the case of A.I.S.B. Officers Federation and others Vs. Union of India and others, reported in JT 1996 (8) S.C. 550 in para 23, has said where a person, who has passed the order and against whom the plea of mala fide has been taken has not been impleaded, the petitioner cannot be allowed to raise the allegations of mala fide. The relevant observation of the Apex Court are reproduced as under: -
"The person against whom mala fides are alleged must be made a party to the proceeding. Board of Directors of the Bank sought to favour respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot 11 be allowed to raise the allegations of mala fide, which allegations, in fact, are without merit." (Emphasis Added) this Court is of the considered opinion, that the submissions made by the Counsel for the Petitioner, that the impugned order has been passed on vague grounds resulting in denial of opportunity to the petitioner to rebut the same is misconceived.
18. The Supreme Court in the case of Om Prakash Chautala v. Kanwar Bhan, reported in (2014) 5 SCC 417 has held as under :
7. As has been indicated earlier, the appellant was not a party to the proceeding. It is manifest that the learned Single Judge has made certain disparaging remarks against the appellant and, in fact, he has been also visited with certain adverse consequences.
The submission of Mr P.P. Rao, learned Senior Counsel, is that the observations and the directions are wholly unsustainable when the appellant was not impleaded as a party to the proceeding and further they are totally unwarranted for the adjudication of the controversy that travelled to the Court.
8. In State of Bihar v. P.P. Sharma this Court has laid down that the person against whom mala fides or bias is imputed should be impleaded as a party-respondent to the proceeding and be given an opportunity to meet the allegations. In his absence no enquiry into the allegations should be made, for such an enquiry would tantamount to violative of the principles of natural justice as it amounts to condemning a person without affording an opportunity of hearing.
9. In Testa Setalvad v. State of Gujarat the High Court had made certain caustic observations casting serious aspersions on the appellants therein, though they were not parties before the High Court. Verifying the record that the appellants therein were not parties before the High Court, this Court observed:
(SCC p. 92, para 7) "7. ... It is beyond comprehension as to how the learned Judges in the High Court could afford to overlook such a basic and vitally essential tenet of the 'rule of law', that no one should be condemned unheard, and risk themselves to be criticised for 12 injudicious approach and/or render their decisions vulnerable for challenge on account of violating judicial norms and ethics." And again: (SCC p. 92, para 7) "7. ... Time and again this Court has deprecated the practice of making observations in judgments, unless the persons in respect of whom comments and criticisms were being made were parties to the proceedings, and further were granted an opportunity of having their say in the matter, unmindful of the serious repercussions they may entail on such persons."
10. In State of W.B. v. Babu Chakraborthy the principle was reiterated by stating that the High Court was not justified and correct in passing observations and strictures against Appellants 2 and 3 therein without affording an opportunity of being heard.
11. In Dilip Kumar Deka v. State of Assam, after referring to the authorities in State of U.P. v. Mohd. Naim, Jage Ram v. Hans Raj Midha, R.K. Lakshmanan v. A.K. Srinivasan and Niranjan Patnaik v. Sashibhusan Kar, this Court opined thus:
(Dilip Kumar Deka case, SCC pp. 238-39, para 7) "7. We are surprised to find that in spite of the above catena of decisions of this Court, the learned Judge did not, before making the remarks, give any opportunity to the appellants, who were admittedly not parties to the revision petition, to defend themselves. It cannot be gainsaid that the nature of remarks the learned Judge has made, has cast a serious aspersion on the appellants affecting their character and reputation and may, ultimately affect their career also.
Condemnation of the appellants without giving them an opportunity of being heard was a complete negation of the fundamental principle of natural justice."
19. Thus, it is clear that unless and until a person is impleaded as a party in his personal capacity, no allegations of bias can be considered against him. Therefore, whatever allegations have been levelled against the S.D.M./respondent no.3 cannot be considered, therefore, the same are rejected on the said ground.
13Whether the Add. Collector was right in holding that the sale deeds in favour of applicants are correct?
20. As already pointed out, the land in dispute was originally registered as Forest Land and in the year 1971-1972 by order dated 7-1-1972, a temporary lease for a period of 5 years was granted in favour of Bilson Tirky. However, after completion of the lease period i.e. 1977, the land should have been re-mutated in the name of State, but that was not done and all of a sudden, by making a false entry, the names of Ramswaroop, Samrandevi and Ramsewak were recorded on the basis of a non-existing order. Further more, Ramswaroop, Samrandevi and Ramsewak, in their turn, sold the land to various persons including the applicant Sharad Agrawal and ultimately, the land which was originally registered as Forest Land was purchased by Ajay Kumar Tiwari. The applicant had also purchased the forest land and in his turn further sold to Prakhar Samajothan Pragati Samiti, who in its turn has sold it to Ajay Kumar Tiwari. The Add. Collector in his order dated 14-10-2019 passed in case no. 29/A-21/2019-20, relied upon the circular dated 27-6-1984 (circular dated 26.6.1984) to hold that even those persons to whom temporary lease was granted were entitled to acquire the bhumiswami rights. This Court in the case of Krishna Bahadur Singh Vs. State of Madhya Pradesh and others decided on 16.4.2024 in W.P.No.17922/2015 and other connected cases, has held that the circular dated 26-6-1984 was not retrospective in operation and in order to take advantage of the said circular, the temporary lease should be existing on the said date i.e., 26- 6-1984. Further more, there was no automatic conferral of Bhumiswami 14 Rights, and there should have been an order in that regard. Circular dated 26.6.1984 reads as under :-
'kklu ds vU; egRoiw.kZ funsZ'k jktLo ¼'kk[kk 2&,½ foHkkx Øekad 16&1@84@lkr@2] Hkksiky] fnukad 26] twu 84 izfr] ¼3½ leLr dysDVj e/;izns'kA fo"k;% 'kkldh; d`f"k ;ksX; d`f"k ds caVu dh uhfr;ksa esa la'kks/kuA mi;ZDr fo"k;d leuO;d vkns'k fnukad 9-2-84 ds i`"B 5 dafMdk ¼AAA½ dh vafdr orZeku esa la'kks/ku dj ;g izko/kku j[kk tkrk gS fd vkcaVu vf/kdkjh }kjk tc vkcaVu dh Hkwfe dk vkcaVu fd;k tk;sxk mlds lkFk&lkFk HkwfeLokeh gd ij Hkwfe vkcafVr gks tk;sxhA ds ckn fuEukuqlkj iafDr tksM+h tk; & iwoZ ds fcuk vkcafVrks dh HkwfeLokeh gd izkIr ugha gq, gS] mudks Hkh iÍs ds v/khu {ks= ds fy, HkwfeLokeh rd vfoyEc iznk; fd;s tkos]a pkgs iÍs dh vof/k fdruh Hkh gksA d`i;k rnuqlkj dk;Zokgh dh tk;A e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj lgh@ch-,y- dhle voj lfpo
21. In the case of Krishna Bahadur Singh (Supra), it has been held as under
:
15. The submission made by counsel for petitioner cannot be accepted. In order to take advantage of circular dated 26/06/1984, the allottee must prove that the Patta (may be temporary in nature) was in existence on 26/06/1984. If Patta had already expired much prior thereto, then circular dated 26/06/1984 will not have any effect on the same. According to the petitioner, Patta was granted to Phuljhari Devi in the year 1973. If the period of Patta had already expired prior to issuance of circular dated 26/06/1984, then no Bhumiswami right could have been conferred on Phuljhari Devi and she was not entitled to take advantage of circular dated 26/06/1984. Furthermore, circular dated 26/06/1984 does not 15 provide that Bhumiswami rights would automatically stand conferred on the allottee to whom the Patta was allotted prior to 26/06/1984. For conferral of rights, there should have been an order by the Competent Authority. No such order has been placed on record.
22. Thus, it is clear that Temporary Lease which was granted in favour of Bilson Tirkey had already come to an end in the year 1977 and it is no one's case that it was ever extended. Thus, by no stretch of imagination, it can be said that Bilson Tirkey acquired Bhumiswami Rights by virtue of circular dated 26-6-1984. Further more, there is no sale deed in favour of Ramsewak, Sarmandevi and Ramswaroop. Therefore, mutation of their names in the revenue record was also contrary to law. Even it is not the case of the applicant that Ramsewak, Sarmandevi and Ramswaroop had acquired title by any document of title. Further more, even the Additional Collector, has not given any finding that Ramsewak, Sarmandevi and Ramswaroop had acquired title by virtue of any document of title. Even otherwise, Ramsewak, Sarmandevi and Ramswaroop were not the legal heirs of Bilson Tirkey. Since, Ramsewak, Sarmandevi and Ramswaroop had no title in their favour, therefore, mere mutation of their names in the revenue record, would not confer any title, because mutation entry is not a document of title and it is made for fiscal purposes only. Once, Ramsewak, Sarmandevi and Ramswaroop had no right or title in the property, then they cannot pass on any right or title by executing any registered sale deed. It is well established principle of law that a seller cannot transfer the title better than what he himself is having. The Supreme Court in the case of State 16 of A.P. v. Star Bone Mill and Fertiliser Company, reported in (2013) 9 SCC 319 has held as under :
17. No person can claim a title better than he himself possesses. In the instant case, unless it is shown that M/s A. Allauddin & Sons had valid title, the respondent-plaintiff could not claim any relief whatsoever from court.
18. In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund this Court held as under : (SCC p. 568, para 12) "12. A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act."
19. In Nair Service Society Ltd. v. K.C. Alexander, dealing with the provisions of Section 110 of the Evidence Act, this Court held as under : (AIR p. 1173, para 15) "15. ... possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides."
20. In Chief Conservator of Forests v. Collector, this Court held that : (SCC p. 484, para 20) "20. ... presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title."
23. Under these circumstances, it is held that the Additional Collector, was not right in holding that the sale deeds in favour of applicants were correct. However, the next question of consideration is that whether the findings given by the Revenue Authorities are binding on the Criminal Court. The Supreme Court in the case of Kishan Singh v. Gurpal Singh, reported in (2010) 8 SCC 775 has held as under :
1716**. In Iqbal Singh Marwah v. Meenakshi Marwah this Court held as under : (SCC pp. 389-90, para 32) "32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings is entirely different.
Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."
17. In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.) this Court considered all the earlier judgments on the issue and held that while deciding the case in Karam Chand, this Court failed to take note of the Constitution Bench judgment in M.S. Sheriff and, therefore, it remains per incuriam and does not lay down the correct law. A similar view has been reiterated by this Court in Vishnu Dutt Sharma v. Daya Sapra, wherein it has been held by this Court that the decision in Karam Chand stood overruled in K.G. Premshanker.
18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.
1824. The Supreme Court in the case of Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.),reported in (2009) 5 SCC 528 has held as under :
24. If primacy is to be given to a criminal proceeding, indisputably, the civil suit must be determined on its own merit, keeping in view the evidence brought before it and not in terms of the evidence brought in the criminal proceeding. The question came up for consideration in K.G. Premshanker v.
Inspector of Police wherein this Court inter alia held: (SCC p. 97, paras 30-31) "30. What emerges from the aforesaid discussion is--(1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 CrPC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.
31. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by A on B's property, B filed a suit for declaration of its title and to recover possession from A and suit is decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be 19 convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, the first question which would require consideration is--whether judgment, order or decree is relevant, if relevant-- its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case."
25. It is, however, significant to notice that the decision of this Court in Karam Chand Ganga Prasad v. Union of India, wherein it was categorically held that the decisions of the civil courts will be binding on the criminal courts but the converse is not true, was overruled, stating: (K.G. Premshanker case, SCC p. 98, para 33) "33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case as well as Sections 40 to 43 of the Evidence Act." Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court.
26. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice.
27. Another Constitution Bench of this Court had the occasion to consider a similar question in Iqbal Singh Marwah v. Meenakshi Marwah wherein it was held: (SCC p. 387, para 24) "24. There is another consideration which has to be kept in mind. Sub-section (1) of Section 340 CrPC contemplates holding of a preliminary enquiry. Normally, a direction for 20 filing of a complaint is not made during the pendency of the proceeding before the court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time-consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii)."
28. Relying inter alia on M.S. Sheriff, it was furthermore held:
(Iqbal Singh Marwah case, SCC pp. 389-90, para 32) "32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different.
Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."
2129. The question yet again came up for consideration in P. Swaroopa Rani v. M. Hari Narayana, wherein it was categorically held: (SCC p. 769, para 11) "11. It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case."
25. The Supreme Court in the case of Prem Raj Vs. Poonamma Menon decided on 2.4.2024 in S.L.P.(Cr.) No.9778/2018 has held as under :
9. In advancing his submissions, Mr. K. Parameshwar, learned counsel appearing for the appellant, placed reliance on certain authorities of this Court. In M/s. Karam Chand Ganga Prasad and Anr. vs. Union of India and Ors.(1970)3 SCC 694, this Court observed that:
".......It is a well-established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true."
In K.G. Premshanker vs. Inspector of Police and Anr, (2002)8 SCC 87, a Bench of three learned Judges observed that, following the M.S. Sheriff vs. State of Madras, AIR 1954 SC 397, no straight-jacket formula could be laid down and conflicting decisions of civil and criminal Courts would not be a relevant consideration except for the limited purpose of sentence or damages.
10. We notice that this Court in Vishnu Dutt Sharma vs. Daya Sapra (Smt.) (2009)13 SCC 729, had observed as under:
"26. It is, however, significant to notice a decision of this Court in Karam Chand Ganga Prasad v. Union of India (1970) 3 SCC 694, wherein it was categorically held that the decisions of the civil court will be binding on the criminal courts but the converse is not true, was overruled therein..."
This Court in Satish Chander Ahuja vs. Sneha Ahuja (2021)1 SCC 414, considered a numerous precedents, including Premshanker (supra) and Vishnu Dutt Sharma (supra), to 22 opine that there is no embargo for a civil court to consider the evidence led in the criminal proceedings.
The issue has been laid to rest by a Constitution Bench of this Court in Iqbal Singh Marwah vs. Meenakshi Marwah, (2005)4 SCC 370 : "32.
Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence, while in a criminal case, the entire burden lies on the prosecution, and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras [1954 SCR 1144: AIR 1954 SC 397: 1954 Cri LJ 1019] give a complete answer to the problem posed: (AIR p. 399, paras 15-16) "15. As between the civil and the criminal proceedings, we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on 23 the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.
This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."
(Emphasis Supplied)
26. Thus, it is clear that the findings given by Additional Collector, which otherwise are erroneous cannot be made applicable to criminal proceedings and therefore, the order dated 14-10-2019 is not binding on the criminal proceedings.
Whether any notice was required to be given to the applicant prior to lodging of FIR as well as prior to passing of order 25-1-2020 by S.D.O., Chhattarpur or not?
2427. A suspect has no right of pre-audience prior to registration of FIR. The Supreme Court in the case of Anju Chaudhary v. State of U.P., reported in (2013) 6 SCC 384 has held as under :
31. The rule of audi alteram partem is subject to exceptions.
Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Thus rule of natural justice has an application, both under the civil and criminal jurisprudence. The laws like detention and others, specifically provide for post-detention hearing and it is a settled principle of law that application of this doctrine can be excluded by exercise of legislative powers which shall withstand judicial scrutiny. The purpose of the Criminal Procedure Code and the Penal Code, 1860 is to effectively execute administration of the criminal justice system and protect society from perpetrators of crime. It has a twin purpose; firstly to adequately punish the offender in accordance with law and secondly, to ensure prevention of crime. On examination, the scheme of the Criminal Procedure Code does not provide for any right of hearing at the time of registration of the first information report. As already noticed, the registration forthwith of a cognizable offence is the statutory duty of a police officer-in-charge of the police station. The very purpose of fair and just investigation shall stand frustrated if pre- registration hearing is required to be granted to a suspect. It is not that the liberty of an individual is being taken away or is being adversely affected, except by the due process of law. Where the officer-in-charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be predominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be 25 said to be a violation of the principles of natural justice for two different reasons : firstly, the Code does not provide for any such right at that stage, secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. This Court in Union of India v. W.N. Chadha clearly spelled out this principle in para 98 of the judgment that reads as under : (SCC p. 293) "98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self- defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary."
32. In Samaj Parivartan Samudaya v. State of Karnataka, a three-Judge Bench of this Court while dealing with the right of hearing to a person termed as "suspect" or "likely offender" in the report of the CEC observed that there was no right of hearing. Though the suspects were already interveners in the writ petition, they were heard. Stating the law in regard to the right of hearing, the Court held as under : (SCC p. 426, para 50) "50. There is no provision in CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the court directs initiation of investigation by a specialised agency or transfer investigation to such agency from another agency that the court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the court. This 26 question is of no relevance to the present case as we have already heard the interveners."
33. While examining the abovestated principles in conjunction with the scheme of the Code, particularly Sections 154 and 156(3) of the Code, it is clear that the law does not contemplate grant of any personal hearing to a suspect who attains the status of an accused only when a case is registered for committing a particular offence or the report under Section 173 of the Code is filed terming the suspect an accused that his rights are affected in terms of the Code. Absence of specific provision requiring grant of hearing to a suspect and the fact that the very purpose and object of fair investigation is bound to be adversely affected if hearing is insisted upon at that stage, clearly supports the view that hearing is not any right of any suspect at that stage.
34. Even in the cases where report under Section 173(2) of the Code is filed in the court and investigation records the name of a person in column (2), or even does not name the person as an accused at all, the court in exercise of its powers vested under Section 319 can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law.
35. Of course, situation will be different where the complaint or an application is directed against a particular person for specific offence and the court under Section 156 dismisses such an application. In that case, the higher court may have to grant hearing to the suspect before it directs registration of a case against the suspect for a specific offence. We must hasten to clarify that there is no absolute indefeasible right vested in a suspect and this would have to be examined in the facts and circumstances of a given case. But one aspect is clear that at the stage of registration of a FIR or passing a direction under Section 156(3), the law does not contemplate grant of any hearing to a suspect.
28. Therefore, none of the applicants were entitled for any hearing prior to registration of FIR.
2729. It is next submitted by Counsel for applicant, that S.D.M., Chhatarpur did not give an opportunity of hearing to the applicants before passing the order dated 25-1-2020 in case no.79/A-6-A/2019-20.
30. Considered the submissions made by Counsel for applicants.
31. By this petition, the applicants have not challenged the order dated 25-1- 2020 passed by SDM Chhatarpur in case No.79/A-6-A/2019-20. Therefore, whether any opportunity of hearing was given to the applicants before passing such order or not is immaterial to decide the present case.
"Whether sale of land by a person other than owner would not be an offence under Section 467, 468, 469 and 471 of IPC?
32. It is submitted by Counsel for the applicant that the Supreme Court in the case of Mohd. Ibrahim (Supra) has held that sale of land by a person other than owner would not amount to offence under Section 467,468,469,470 and 471 of IPC.
33. Considered the submissions.
34. The Supreme Court in the case of Mohd. Ibrahim (Supra) has held as under :
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents", it is not sufficient 28 that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else.
Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.
35. A Three Judges bench of Supreme Court in the case of Ram Narayan Popli v. CBI, (2003) 3 SCC 641 has held as under :
366. Section 420 deals with cheating and dishonestly inducing delivery of property. The offence of cheating is made of two ingredients : deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property.
To put it differently, the ingredients of the offence are that the person deceived delivers to someone a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing the person. To constitute the offence of cheating, it is not necessary that the deception should be by express words, but it may be by conduct or implied in the nature of the transaction itself.
367. Section 467 relates to forgery of such documents as valuable securities and of other documents mentioned.
368. Section 468 deals with forgery for the purpose of cheating. The offence is complete as soon as there was forgery with a particular intent.
29369. Section 471 deals with using as genuine a forged document. For the purpose of convicting an accused under Section 467 read with Section 471 IPC, it has to be shown that an accused either knew or has reason to believe that the document was forged.
370. Section 463 defines forgery and Section 464 deals with making a false statement. Section 463 reads as follows:
"463. Forgery.--Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
371. In order to constitute forgery, the first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any community.
372. The expression "intent to defraud" implies conduct coupled with an intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions, namely, the deceit and injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term "forgery" as used in the statute is used in its ordinary and popular acceptation.
373. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are
(i) is the document false, (ii) is it made by the accused, and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty.
374. In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a 30 corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however small.
375. The intent to commit forgery involves an intent to cause injury. A person makes a false document who dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed.
376. A false description makes a document of forgery when it is found that the accused by giving such false description intended to make out or wanted it to believe that it was not he that was executing the document but another person.
36. If the facts of the present case are considered, then it is clear that in the registered sale deeds, it was specifically mentioned that the land in dispute is not a Govt. lease land and the seller is the exclusive owner of the same. This declaration will bring the act of the seller within the purview of preparing false document and forgery because it was made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. Further, the seller was dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. As already pointed out, Ramsewak, Sarman Devi and Ramswaroop had no authority to sell the land and inspite of that it was purchased by the various persons, with a specific declaration that the land is not a Govt. leased land but in fact not only it was a Govt. land but lease had already expired in the year 1977. By preparing a false document with a clear declaration that the land in dispute is not a Govt. lease land and it belongs to the seller, a clear intention was to grab the Govt. land illegally. Thus, the only intention was to gain undue advantage by causing undue loss to the Government.
31Every forgery involves a false document. Thus, illegally selling the Govt. land by making a specific declaration that it is not a Govt. land, then a prima facie case would be made out warranting prosecution. Whether Civil Wrong has been given the colour of Criminal case
37. It is submitted by Counsel for applicant, that at the most the case in hand would be a civil wrong and therefore, it should not have been given the colour of criminal case.
38. Considered the submissions made by Counsel for applicant.
39. This Court has already considered the merits and allegations. The only question is that whether the allegations are predominantly of civil in nature or criminality is also involved. The Supreme Court in the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 has held as under :
27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.32
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a 33 conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debitojustitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
(Underline supplied)
40. Thus, it is clear that merely because civil ingredients are also involved in the allegations, it would not mean that wrongdoer cannot be criminally 34 prosecuted. As already pointed out that Govt. land was sold by three persons Ramsewak, Sarmandevi and Ramswaroop without any authority of law. Since, they did not have any sale deed in their favour therefore there was no question of any bonafide belief on their part that they are the owners of the Govt. land. The subsequent purchasers cannot claim purchase of land under bonafide belief because "good faith" has been defined under Section 52 of Indian Penal Code which reads as under :
52. "Good faith".--Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.
41. Therefore, it was always obligatory on the part of the purchaser to verify the title of the seller, because a seller cannot transfer the title better than what he himself was having. Even it is claimed by the subsequent purchaser that he had purchased the property under a bonafide belief, then such claim is not sufficient in the light of Section 52 of IPC and he has to explain that he had checked the previous land records to find out that who is the owner of the property in dispute. Once, the land was already registered as a Govt. Forest Land, then it was clear that without release of property by the Govt. or without any order or document of title, Ramsewak or Sarman devi or Ramswaroop had no authority to alienate the property and therefore, if the subsequent purchasers purchased the said property, then it is clear that it was not a bonafide transaction.
42. No other arguments are advanced in the case.
43. Considering the fact that the applicants have not claimed that Ramsewak, Sarmandevi or Ramswaroop had any right or title in the land in dispute, 35 therefore, this Court is of the considered opinion that no case is made out warranting interference.
44. Accordingly, M.Cr.C.s No. 7431/202, 9859/2020, 12289/2020 and 17457/2020 are hereby Dismissed.
Interim orders are hereby vacated.
(G.S. AHLUWALIA) JUDGE HEMANT SARAF 2024.05.10 10:41:50 +05'30' HS