Jharkhand High Court
Anil Kumar vs The Union Of India Through C B I on 18 June, 2015
Author: R.R. Prasad
Bench: R. R. Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 04 of 2013
Anil Kumar .... .... Petitioner
Versus
The Union of India through CBI .... .... Opp. Party
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CORAM: HON'BLE MR. JUSTICE R. R. PRASAD
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For the Petitioner : Mr. Indrajit Sinha, Advocate
For the CBI : M/s Mokhtar Khan & Niranjan Kumar, Advocates
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CAV ON 08/01/2015 PRONOUNCED ON 18/06/2015
19/18.06.2015This application has been filed for quashing of the entire criminal proceedings of RC No. 04(A)/2010-AHD-R(C) including the order dated 11.12.2012, passed by the Special Judge, CBI, Ranchi, whereby and whereunder cognizance of the offences punishable under Section 120B, 193, 420 of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 has been taken against the petitioner.
The fact of the case giving rise to this application is that a complaint case bearing Complaint Case No. 02 of 2008 was lodged by the complainant before the court of Vigilance, Ranchi alleging therein that the then two ministers namely, Hari Narayan Rai and Enos Ekka, have acquired huge properties by abusing their official positions. The said complaint was sent before the Vigilance police station for its institution and registration. Accordingly, it was registered as Vigilance P.S. Case No. 26 of 2008. While the matter was being investigated by the Vigilance, an order was passed on 4.8.2010 by this Court in W.P. (PIL) Nos. 4700/08 and 2252/09, whereby the CBI was directed to take over the investigation of the said case. Accordingly, the CBI took over the investigation of the case.
During investigation, it was found that said Enos Ekka has also 2 acquired properties in the name of his wife-Menon Ekka fraudulently and mischievously in connivance with the DCLR, Circle Officer, Circle Inspector-Town Anchal (petitioner) and Karamchari. During investigation, it was also found that the seller submitted an application for granting permission to sell a piece of land stating therein that the purchaser does have landed property in the area situated within Chutia police station. It also accompanied a check slip wherein one of the columns, seeking information as to whether the purchaser does have land, was kept blank purposely. On receiving said application, DCLR asked the Circle Officer to submit report. The Circle Officer called for a report from the Karmchari who submitted a report to the petitioner, Circle Inspector- Town Anchal, to the effect that the purchaser does have land in the area situated within Chutia police station. The petitioner (Circle Inspector- Town Anchal) by making an endorsement to the effect that the purchaser and the seller, both the members of Scheduled Tribes community, are the residents of the area situated within same police station, made recommendation for giving permission to the seller to sell the land to the purchaser. The said report was submitted to the DCLR who granted permission to the seller for selling the land to Smt. Menon Ekka though Smt. Menon Ekka in fact has no land in the area situated within Chutia police station.
After completion of the investigation, charge-sheet was submitted against the Karmchari, Circle Inspector, Town Anchal (petitioner), Circle Officer as well as other authorities for commission of the offences punishable under the Indian Penal Code as also under the Prevention of Corruption Act alleging therein that the accused persons including the petitioner by abusing their official position put the purchaser in advantageous position and thereby committed offences punishable under Section 120B, 193, 420 of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 3 1988.
On submission of the charge-sheet, when cognizance of the offences as aforesaid was taken against the petitioner vide order dated 11.12.2012, it was challenged before this Court.
Mr. Indrajit Sinha, learned counsel appearing for the petitioner, submits that the petitioner being Circle Inspector, Town Anchal did act upon the report submitted by the Karmchari and hence made recommendation for transferring the land in favour of Smt. Menon Ekka and the DCLR acting upon such report granted permission in terms of the provisions as contained in Section 46(1) of the Chhotanagpur Tenancy Act and that under the provisions as contained in Sections 46 and 48 of the Chhotanagpur Tenancy Act dealing with the conditions/restrictions on the transfer of land of bhuinhari tenure, neither the Circle Inspector Town Anchal nor the Karmchari have any role to play, rather it is for the Deputy Collector, who is the statutory authority, to give permission or to refuse permission for transfer of land but for administrative convenience a system has been adopted though foreign to the provision of the Chhotanagpur Tenancy Act of calling for the report from the Circle Inspector as well the Karmchari. Accordingly, when the Karmchari submitted his report to the petitioner, the petitioner on the basis of the report submitted by Karmchari and also on the basis of declaration made in the application/affidavit by the seller/purchaser that she is the resident of the area falling within the police station in which vended lands situate made recommendation for transfer of land in favour of the transferee and thereby the petitioner did not commit any criminal offence cannot be said to have committed any offence and keeping in view this aspect of the matter, the order taking cognizance against the DCLR has been quashed.
It was submitted that though the petitioner by acting upon the report of the Karmchari made endorsement and made recommendation but the petitioner was having no knowledge of the fact that the purchaser 4 was not having any land in the area situated within Chutia police station. In the instant case, the prosecution has not come forward with the case that the petitioner in spite of having knowledge of the fact that the purchaser was not having any land in the area situated within said police station still he forwarded that report containing wrong fact that the purchaser was having land in that area. In absence of the said allegation, the petitioner cannot be said to have committed any offence either under the Indian Penal Code or under the Prevention of Corruption Act particularly when the prosecution has not come forward with the case that the petitioner did it to have for undue pecuniary advantage. Under the circumstances, no criminal office is made out in view of the decision rendered in a case of C.K. Zafarsharif Vs. The State through CBI {2013(1) SCC 205}.
It was further submitted that if the petitioner forwarded the report which contains incorrect facts, he cannot be held liable for criminal offence though the petitioner may be held liable administratively for such laches.
As against this, Mr. Mokhtar Khan, learned counsel for the CBI, by placing reliance heavily from the check list, submits that the necessary column i.e. Column No. 17 of the check list seeking information as to whether the purchaser does have any land in the area situated within Chutia police station was kept blank and thereby no information was furnished as to whether the purchaser was having land or not within that police station.
However, the petitioner being Circle Inspector, Town Anchal on receiving the report submitted by Karmchari made endorsement of the fact that the purchaser is having land in the area situated within Chutia police station though he was having knowledge of the fact that the purchaser was having no land within Chutia police station and hence, the order taking cognizance against him never warrants to be quashed. 5
From the submissions advanced on behalf of the parties, it does appear that the petitioner is being prosecuted for the reasons that he being the Circle Inspector, Town Anchal in connivance with the other accused persons wrongly reported that the purchaser does have land in the area situated within Chutia police station of which the seller was the resident.
However, according to the petitioner, even if such report is submitted, the petitioner is not liable to be prosecuted, as he made recommendation by acting upon the report submitted by the Karmchari and in fact he had no personal knowledge that the purchaser was having no land in the area situated within Chutia police station but the stand, which has been taken on behalf of the CBI, is that the petitioner in spite of having knowledge of the fact that the purchaser does have no land in that area still reported that the purchaser does have land in that area.
The submission was also advanced to the effect that the Circle Inspector or the Karmchari is not supposed to do any act in the matter relating to transfer of land but for administrative convenience a system was developed for calling for the report from the Karmchari before any order is made by the competent authority relating to transfer of land and, therefore, when the report was called for, Karmchari and also the petitioner being Circle Inspector, Town Anchal reported that the purchaser is the resident of the same area but the CBI during investigation has found that the purchaser is never the resident within the local limits of the area of police station within which holding (vended land) situates, rather the purchaser was the resident of District-Simdega whereas all lands purchased situate within the district of Ranchi. Thus, the report, submitted by the petitioner, can be said to be a false report.
Further submission is that the CBI submitted charge-sheet on the presumption that the person purchasing the land should have landed property in that area in which vended land situates and only then he can 6 be said to be the resident but the proviso (a) to Section 46 (1) of the Chhotanagpur Tenancy Act never makes such stipulation. I am not intending to go into the details of it, as any finding, given at this stage, would be prejudicial at the stage of trial but prima facie submission, advanced in this respect on behalf the petitioner, is not acceptable, as the clause 'residence' appearing in proviso (a) to Section 46 (1) of the Chhotanagpur Tenancy Act, is to be read with holding which has been defined under the Chhotanagpur Tenancy Act.
Under the circumstances, I do not find any illegality with the impugned order taking cognizance against the petitioner. Hence, this application stands dismissed.
However, before parting with this order, it be stated that any finding given for the purpose of disposal of this case, shall not be prejudicial to the case of the petitioner.
(R.R. Prasad, J.) AKT