Punjab-Haryana High Court
Satparwan Singh vs State Of Punjab And Ors on 10 December, 2014
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRM No.M-13317 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM No.M-13317 of 2013 (O&M)
Date of decision: 10.12.2014
Satparvan Singh
...Petitioner
Versus
State of Punjab and another
...Respondents
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. Ravi Kant Sharma, Advocate for the petitioner.
Ms. Harsimrat Rai, DAG, Punjab
assisted by ASI Avtar Singh.
****
Jitendra Chauhan, J. (Oral)
The present petition under Section 482 of the Code of Criminal Procedure has been filed for quashing the impugned order dated 16.08.2012 (Annexure P-1), vide which the application filed by the petitioner under Section 239 Cr.P.C., was dismissed and the order dated 20.03.2013 (Annexure P-2), vide which the revision petition filed against the said order was dismissed by the learned Addl. Sessions Judge, Gurdaspur, in case FIR No. 75 dated 11.07.2010, registered under Section 409 IPC at Police Station Kalanaur, District Gurdaspur.
The learned counsel for the petitioner contends that the KUMAR SUMIT 2015.01.14 17:11 I attest to the accuracy and authenticity of this document CRM No.M-13317 of 2013 -2- learned Courts below have erred in law and facts while passing the impugned orders. The petitioner, a patwari in the revenue Department of the Punjab Govt. was transferred on 26.05.2010 from Halqa Dula Nangal to Halqa Lamin. The present FIR has been registered on the ground that consequent upon the transfer of petitioner from Halqa Dula Nangal to Halqa Lamin, there was delay of 5-6 months in handing over the charge to Patwari Jagjit Singh posted in his place. Except the delay in handing over the charge, there is nothing on record against the petitioner. In fact the petitioner made best efforts to hand over the charge to Jagjit Singh, but he proceeded on a long leave as he went to Hazur Sahib for pilgrimage and thereafter, he fell ill and remained hospitalized. The delay in handing over the charge is neither willful nor intentional, and it is due to the unavoidable circumstances.
On the other hand, the learned State counsel, on instructions, states that some pages of mutation register maintained by the petitioner were missing and despite repeated reminders, the charge was not handed over by the petitioner to his successor.
I have heard the learned counsel for the parties and have gone through the record carefully with their able assistance.
The fact of delay in handing over the charge is not disputed. The petitioner being a public servant is duty bound to hand over the charge on his transfer to his successor. The delay appears to KUMAR SUMIT 2015.01.14 17:11 I attest to the accuracy and authenticity of this document CRM No.M-13317 of 2013 -3- be not mala fide. There is no document of the department to show that there is any misappropriation or criminal breach of trust of the property entrusted to the petitioner, as Patwari. No departmental enquiry was held against the petitioner. The petitioner was suspended for not handing over the charge and subsequently, he was reinstated into service and was given the charge of Patwari Agrarian in the District Headquarters of Gurdaspur. Mere delay in handing over the charge by the petitioner to his successor without mens rea with reasonable cause does not constitute any offence.
The argument of learned State counsel that two pages of mutation register of Parat Patwar are missing, is not tenable. The charge framed by the JMIC, Gurdaspur against the present petitioner is that the accused was entrusted with the property i.e. the charge of the office of Patwari and he committed criminal breach of trust in respect of the said charge of the office of the Patwari by not handing over the charge to Patwari Jagjit Singh and thereby committed an offence punishable under Section 409 IPC. No charge of missing of papers from the mutation register has been framed against the petitioner. No wrongful loss or wrongful gain is alleged to have caused to any party. Para 7.4 of the Land Record Manual reads as under:-
"7.4 General Instructions (i) The mutation register consists of a counterfoil and a foil. The former is KUMAR SUMIT 2015.01.14 17:11 I attest to the accuracy and authenticity of this document CRM No.M-13317 of 2013 -4- the patwari's copy of the register. The latter is removed after orders have been passed, and sent to the tehsil to be filed with the jamabandi. The patwari should make his entries in columns 1 to 13 of the counterfoil, but he should make no entry in column 15. Having thus filled up columns 1 to 13 in the counterfoil, the patwari shall copy these entries in the foil. He shall then write his report in column 15 of the foil, briefly state the facts explaining the change, the names of the persons on whose information the entry is based, and require the lambardar concerned to attest the entry by seal or signature. He is however, strictly forbidden to take the thumb-mark or the signature of any of the parties to the transaction anywhere on the mutation sheet."
As one original copy is available with Parat Sarkar, accusation against the petitioner is not sustainable. At the most, it is a case of negligence or misconduct on the part of the petitioner for not handing over the charge to his successor in office for which the department has not opted to proceed against the delinquent petitioner but no offence under Section 409 of the Indian Penal Code is made out against the petitioner in the given set of circumstances.
In M/s Zandu Pharmaceutical Works Ltd. Vs. Md.
Sharaful Haque, 2004 (4) RCR (Criminal) 937, the Hon'ble Apex Court has held as under;
"D. Criminal Procedure Code, Section 482 - High KUMAR SUMIT 2015.01.14 17:11 I attest to the accuracy and authenticity of this document CRM No.M-13317 of 2013 -5- Court when to exercise inherent power under Section 482 Criminal Procedure Code - Inherent jurisdiction may be exercised namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. Inherent jurisdiction has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. The inherent power should not be exercised to stifle a legitimate prosecution."
Keeping in view the provisions of the law and facts of the case, this Court feels that it is a fit case where it should exercise its extra ordinary jurisdiction under Section 482 of the Code of Criminal Procedure Code.
Accordingly, the impugned order dated 16.08.2012 (Annexure P-1) and the order dated 20.03.2013 (Annexure P-2) are set aside and application under Section 239 Cr.P.C., for discharge of the petitioner in FIR No. 75 dated 11.07.2010, registered under Section 409 IPC at Police Station Kalanaur, District Gurdaspur is allowed and the accused/petitioner is discharged.
Though, the petitioner has not prayed for quashing of the above FIR, yet this Court feels that continuation of proceedings is abuse of process of law. Hence, the FIR No. 75 dated 11.07.2010, KUMAR SUMIT 2015.01.14 17:11 I attest to the accuracy and authenticity of this document CRM No.M-13317 of 2013 -6- registered under Section 409 IPC at Police Station Kalanaur, District Gurdaspur, report under Section 173 Cr.P.C., charge framed by the trial Court on 25.08.2012 and all consequent proceedings arising therefrom are, hereby, quashed.
10.12.2014 (JITENDRA CHAUHAN)
sumit.k JUDGE
KUMAR SUMIT
2015.01.14 17:11
I attest to the accuracy and
authenticity of this document