Jharkhand High Court
Vir Kumar Jain vs State Of Jharkhand Through Vig on 7 November, 2012
Author: R. R. Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M. P.No.982 of 2012
Vir Kumar Jain........................................Petitioner
VERSUS
State of Jharkhand through Vigilance...Opposite Party
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr. R.S.Majumdar, Sr. Advocate
For the Vigilance : Mr. Shailesh
9/ 7.11.12. Heard learned counsel appearing for the petitioner and learned counsel appearing for the Vigilance.
This application has been filed for quashing of the entire criminal proceeding of Vigilance P.S. case no.28 of 2000 (Special Case no.15 of 2000) including the order dated 26.11.2009 whereby and whereunder cognizance of the offences punishable under Sections 423, 424, 467, 468, 469, 471, 477A, 409, 120(B) and 109 of the Indian Penal Code and also under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act has been taken against the petitioner and others.
In the context of the present petitioner, the case of the prosecution is that one Tulsidas Kanodia sold 11 kathas of the land appertaining to plot no. 28 falling within the urban area of Ranchi on 1.7.1982 to this petitioner. Since the proceeding under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act') was going on, this petitioner filed an application before the competent authority for dropping of the proceeding so far 11 kathas of the land is concerned. That application was rejected on 6.7.1987 by holding that the deed of transfer is null and void. In spite of that, petitioner sold the land to Mahesh Prasad and Kameshwar Prasad on 12.6.1989 concealing the fact that his prayer for dropping of the proceeding with respect to that land had already been rejected by the competent authority. In spite of that, land was mutated in the name of the transferees which was in violation of the provision as contained in Section 5(3) of the Act. On such accusation, a case was registered against this petitioner and others by the Vigilance which was registered as Vigilance P.S. case no.28 of 2000 under Sections 423, 424, 467, 468, 469, 471, 477A, 409, 120(B) and 109 of the Indian Penal Code and also under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
After completion of investigation, charge sheet was submitted, upon which cognizance of the offences punishable under Sections 423, 424, 467, 468, 469, 471, 477A, 409, 120(B) and 109 of the Indian Penal Code and also under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act was taken against the petitioner and others, vide order dated 26.11.2009 which is under challenge.
Mr.R.S.Majumdar, learned Sr. counsel appearing for the petitioner submitted that accepting the entire fact that in spite of the application filed for dropping out 11 kathas of the land from the land ceiling proceeding being rejected, the petitioner transferred the land under the teeth of the provision of the Ceiling Act still he cannot be prosecuted for criminal offences though the transfer which was made on 12.6.1989 may be held to be null and void but simply the transfer being said to be null and void, one cannot be prosecuted for criminal offence of cheating, forgery and misappropriation when those offences on the alleged act of the petitioner never gets attracted.
So far the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is concerned, allegation too never gets attracted even it is assumed that the petitioner in connivance with the other accused got the land sold to others as he has never been alleged to have done that by adopting corrupt practices or illegal means for having pecuniary advantage/valuable thing for himself or for any other person. The aforesaid essential ingredients constituting offence under Section 13(1)(d) is completely lacking as nothing could be placed to show that the petitioner by transferring land put any public officer to pecuniary advantage and as such, the petitioner cannot be prosecuted under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
Mr.Shailesh, learned counsel appearing for the Vigilance submitted that this petitioner is the person who had purchased 11 kathas of the land on 1.7.1982 from Tulsidas Kanodia and after purchasing the land, he filed an application before the competent authority for dropping out the proceeding so far 11 kathas of the land is concerned. That application got dismissed but the petitioner without bringing the fact into notice to the competent authority or even to the other authority sold the land on 12.6.19889 which land got mutated in the name of the transferee and all these acts have done by the accused in conspiracy with each other.
Having head learned counsel appearing for the parties and on perusal of the record, it does appear that this petitioner having purchased 11 kathas of the land from Tulsidas Kanodia on 1.7.1982 filed an application before the competent authority in a proceeding which had been initiated against the original land holder for dropping out of the proceeding for 11 kathas of the land. That application got dismissed. In spite of that, the petitioner sold the land to Mahesh Prasad and Kameshwar Prasad on 12.6.1989 under registered sale deed. Accepting all these facts to be true, the question would be as to whether the petitioner did commit any offence as has been alleged by the Vigilance.
Admittedly, the petitioner did transfer the land after the notification was issued in terms of Section 10(1) on 24.10.1986 but before declaration was made in terms of Section 10(3) on 16.9.1997. Under the provision of Section 10 if one transfers the land which was subject matter of the proceeding after the notification is issued under Section 10(3) of the Act, the said transfer would be deemed to be null and void. At the same time, the act also does prescribe that if one who is holding land excess than ceiling limit transfer of the land it becomes null and void. Since transfer had been made after his claim made before the competent authority was rejected, the petitioner is being prosecuted for the offences of forgery, misappropriation, cheating and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
The question does arise as to whether the act of the petitioner would amount to an act of forgery as defined in Section 464 of the Indian Penal Code.
An analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories.
1.The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3 The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
Therefore, even if the order passed by the petitioner, as per the prosecution, is erroneous/illegal on account of being against the statute, it does not constitute any offence whatsoever under Sections 467, 468, 469,471 and 477A of the Indian Penal Code as passing of any order even an illegal order never assumes any characteristics of making a false document.
At the same time, there does not appear to be any allegation attracting offence under Section 409 of the Indian Penal Code.
So far the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is concerned, the petitioner though has been alleged to have transferred the land to other in spite of his prayer for dropping of the proceeding from the land purchased being rejected and being contrary to the provision of the statute but he has never been alleged to have done that by adopting corrupt practices or illegal means for having pecuniary advantage/valuable thing for himself or for any other person. The aforesaid essential ingredients constituting offence under Section 13(1)(d) is completely lacking as nothing could be placed to show that the petitioner by transferring land put any public officer to pecuniary advantage and as such, the petitioner cannot be prosecuted under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
Further it be recorded that though cognizance of the offence has been taken also for the offences under Sections 423 and 424 of the Indian Penal Code but it has never been the case of the prosecution that there was dishonest and fraudulent execution of the deed of transfer containing false statement of consideration. At the same time, it has also not been the case of the prosecution that there was dishonest or fraudulent removal or concealment of property.
Thus, I do find that the instant case falls within category (1) and (3) enunciated in a case of State of Haryana and others vs. Bhajan Lal [1992 Supp (1) SCC 335] where High Court can exercise its power either under Article 226 or under its inherent power under Section 482 of the Code of Criminal Procedure to prevent abuse of the process of any court or otherwise to secure the ends of justice and, therefore, it would be gross abuse of the process of law if the criminal proceeding is allowed to continue and the petitioner is asked to face rigour of trial when the allegations made in first information report even if are taken at their face value and are accepted to be true do not constitute any offence against the petitioner.
Accordingly, entire criminal proceeding of Vigilance P.S. case no.28 of 2000 registered under Sections 423, 467, 468, 469, 471, 477A, 109 read with Section 120(B) of the Indian Penal and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act including the order taking cognizance is hereby quashed so far the petitioner is concerned.
In the result, this application is allowed.
( R. R. Prasad, J.) ND/