Chattisgarh High Court
R.B. Dewangan vs State Of Chhattisgarh on 19 April, 2024
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 01.03.2024
Order delivered on 19/04/2024
CRR No. 1082 of 2023
• R.B. Dewangan S/o Mannu Lal Dewangan Aged About 58
Years (Suspended Employee) R/o Attached To
Commissioner Office Jagdalpur, District Raipur (C.G.)
---- Petitioner
Versus
• State Of Chhattisgarh Through Eow / Acb Raipur, District
Raipur, Chhattisgarh
---- Respondent
For Petitioner : Mr. Kishore Bhaduri, Sr. Advocate assisted by Mr. Pawan Kesharwani, Ms. Aditi Diwan & Ms. Smriti Singh, Advocates.
For Respondent : Mr. U.K.S. Chandel, Dy. Adv. General SB: Hon'ble Mr. Justice Parth Prateem Sahu CAV Order
1. Petitioner has preferred this criminal revision feeling aggrieved by rejection of his application filed under Section 227 of the Criminal Procedure Code, 1973 (for short 'CrPC') as well as framing of charge under Sections 120B, 420, 468, 471, 423, 200 of the Indian Penal Code (for short 'IPC') and Section 7, 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short 2 'the Act of 1988').
2. The facts necessary for disposal of this criminal revision are that the complainant lodged a written complaint before the Superintendent of Police, Anti Corruption Bureau, Raipur to the effect that land bearing Khasra No.111 area 0.82 hectare situated at P.H. No.15, Dhamdha Road, Tahsil & District Durg, which is non- transferable government land, was recorded in the name of Biselal son of Sukhru as lessee. After the death of said Sukhru, the said land came to be recorded in the name of five holders namely Samaliya, Sukwaro, Baisakhin, Suman Bai and Shantibai. On 26.10.2023, out of 0.82 hectare non-transferable land, an area of land measuring 0.740 hectare is sold and thereafter the purchaser concerned applied for mutation before the petitioner herein. During pendency of mutation proceeding, an objection was submitted before petitioner along with relevant documents showing that the land sought to be mutated is a non-transferable land being government leasehold land and the same cannot be transferred or sold without permission of authorized officer (District 3 Collector). Said objection was taken on record by the petitioner on record. However, petitioner rejected the said objection, passed the mutation order directing for mutation of the name of purchaser in land records after misusing his official position and thereby knowingly cheated and caused financial loss to the State ex- chequer. Complaint of complainant was inquired into by Anti Corruption Bureau and in the inquiry conducted it was found that the petitioner deliberately misusing his official position passed the order of mutation causing loss of revenue to the government. Based on inquiry, FIR under Crime No.7/2019 was registered by the ACB/EOW, Raipur for the offence punishable under Sections 420, 120B, 423, 466, 468, 471 of IPC and Section 13 (1) (d) and 13 (2) of the Act of 1988 and after completion of investigation, filed charge sheet before the Court concerned for the aforementioned offences against petitioner and other co-accused persons.
3. After filing of charge sheet, petitioner moved an application under Section 227 of CrPC for discharge pleading that the order of mutation was passed by 4 petitioner after following the procedure established in this regard i.e. by recording statements of purchaser- seller and obtaining report of Patwari concerned in which it was reported that the land involved is not the government land. Petitioner has nothing to do with the transaction between the purchaser and seller to the sale deed. He has not committed any misconduct, the order was passed in quasi judicial capacity, hence, he is entitled for protection available to him under the law.
4. By the order impugned dated 09.08.2023 the trial Court rejected said application and proceeded to frame the charges against the petitioner under Sections 420, 120B, 423, 466, 468, 471 of IPC and Section 13 (1) (d) and 13 (2) of the Act of 1988. Hence, this revision.
5. Learned Senior Counsel for the petitioner submits that the order impugned passed by the trial Court rejecting an application under Section 227 of CrPC and framing charges against petitioner is a non-speaking order and does not indicate any application of mind. Learned trial Court has mentioned the facts, reproduced the arguments of the counsel for both sides and also 5 referred some case laws, but not assigned any reason in the concluding paragraph as to on what basis the trial Court reached the conclusion that prima facie case has been made out against the petitioner or grave suspicion arises against the petitioner. He submits that the petitioner in exercise of his powers as a quasi judicial authority/ Tehsildar passed the order of mutation in accordance with law and as per Section 3 of the Judicial Officers' Protection Act, 1985, a Revenue Officer is protected for the orders passed in discharge of his official duty. Further, the sanction for prosecution, as required under Section 197 CrPC, has not been obtained before registering the offence against the petitioner. He submits that the petitioner has been charge sheeted only on the basis of inquiry report submitted by the officer of the ACB. However, the Enquiry Officer who conducted inquiry on the complaint of complainant, is one of the friends of complainant, who is in the habit of making false complaints against petitioner and in one such criminal proceeding initiated against petitioner, the trial Court concerned while acquitting the petitioner of all the 6 charges levelled against him in that proceeding, has observed that complainant herein is the enemy of petitioner. Thus, it is apparent that the present is the case of no evidence and the entire proceeding against the petitioner is off-shoot of personal vengeance and there exists no ingredients of the offence against petitioner with which he is charged with. The objector to said mutation proceeding as well as alleged witness to the incident are highly unreliable having criminal background. He further submits that there is no evidence in the charge sheet to show that any of the acts alleged were done by the petitioner with dishonest intention so as to defraud the government and even assuming, for the sake of argument only, that the entire allegation against the petitioner is accepted, at the most, it may amount to dereliction of duty on the part of the appellant. There is no whisper in the entire charge sheet that the petitioner has made the demand and received valuable thing or amount, which is an illegal gratification, as a reward for doing favour to any person by misusing his official position and thereby he committed the 7 offences under the Act of 1988. Since there is no material to show any demand and receipt of the amount etc. by the petitioner, then the presumption under Section 20 of the Act of 1985 will not be attracted. He submits that in these circumstances the charges, as framed, could not have been legally framed against the petitioner and the same, to secure the ends of justice, need to be quashed in exercise of revisional jurisdiction. To buttress his contention, he placed reliance on decision of Hon'ble Supreme Court in the case of Phool Chandra Arya vs. State of UP & ors, reported in 2016 (3) ACR 2639 as well as the order dated 17.1.2020 passed in CrMP No.366/2015 by Coordinate Bench of this Court.
6. On the other hand, learned State Counsel opposing submissions of learned counsel for petitioner, would submit that after conducting inquiry on the complaint filed by the complainant, the instant offence was registered against petitioner and others. Thereafter thorough investigation was conducted in the matter which culminated into filing of charge sheet having found prima facie case against the petitioner. The 8 averments made on behalf of the petitioner for discharge are in the nature of defence which cannot be considered at this stage as the veracity of the prosecution case is yet to be decided during trial. The materials on record disclose grave suspicion against the petitioner, therefore, the order framing charges cannot be faulted.
7. I have heard learned counsel for the parties and perused the documents placed along with criminal revision.
8. Allegation against the petitioner is that the he ignored the documents indicating that the land sought to be mutated is a non-transferrable government land, and passed the order directing mutation of said land after deliberately misusing his official position and thereby derived undue pecuniary benefits for himself and caused loss to the State ex-chequer. During course of investigation, prosecution collected documents including B-1 in which the land in question is recorded to be 'non- transferable'. This document B-1 is also submitted before the Tahsildar in mutation proceeding along with list of documents by the Objector. List of documents and B-1 is part of charge sheet. Statements of witnesses 9 including Ramdev Towri have been recorded and said Ramdev Towri claimed to have seen the petitioner receiving illegal gratification. The charge sheet contains a list of 29 witnesses who are proposed to be examined by the prosecution in support of the charges framed against the accused persons including petitioner. The documents annexed by the prosecution are the revenue documents, inquiry reports etc.
9. In case of Amit Kapoor vs. Ramesh Chander, reported in (2012) 9 SCC 460, Hon'ble Supreme Court has laid down the principles to be borne in mind for proper exercise of jurisdiction under Section 397 or 482 CrPC, as the case may be, particularly in the context of quashing of charge. The principles in Amit Kapoor's case (supra) were recently quoted with approval in case of Manendra Prasad Tiwari v. Amit Kumar Tiwari & another, reported in 2022 SCC Online SC 1057. One of the principles on which revisional jurisdiction can be exercised is that if the allegations are patently so absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic 10 ingredients of a criminal offence are not satisfied then the Court may interfere. Relevant principles culled out by Hon'ble Supreme Court in aforementioned decision read thus:-
"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.
xxxxx xxxxx xxxxx 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.
xxxxx xxxxx xxxxx 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 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.
xxxxx xxxxx xxxxx 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 11 interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist."
10. Thus, it is well settled preposition in law that the appreciation of evidence is a function of the trial Court at the appropriate stage. It is crystallized judicial view that at the stage of discharge, the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. At the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceedings against the accused. It has also been settled that charges can also be framed on the basis of strong suspicion. If there is ground for presuming that the accused has committed the offence, the Court can justifiably say that prima facie case exists against the accused. Marshaling and appreciation of evidence is not in the domain of the trial court at the time of considering discharge application. The final test of guilt is not to be applied at that stage.
11. Having examined the matter in hand in its entirety and 12 considering the submissions advanced by the learned counsel for the parties and documents available in the charge sheet, I find that main allegation is that a conspiracy was hatched up so as to cheat and cause loss to the State ex-chequer and petitioner was also a party to the alleged criminal conspiracy. There is also allegation of dishonest intention on the part of the petitioner in issuing the order of mutation of a non- transferrable government land. The questions as to whether there was or there was not a conspiracy among the petitioner and/or petitioner was part of the conspiracy or there was dishonest / fraudulent intention since inception, are all matter of evidence and can be ultimately decided during the course of trial on the basis of evidence which would come on record. Even, the grounds urged in this revision reveal that many of them are subject matter of trial or in the nature of defence which will have to be evaluated after a full-fledged trial.
12. This Court, at the stage of charge, in exercise of revisional jurisdiction is not required to go for mini trial as held by the Hon'ble Supreme Court in case of Mohan Lal vs. 13 State of Rajasthan, reported in (2019) 15 SCC 584, in Para-7, which reads thus:-
"7. We are of the view that the High Court could not have conducted a mini trial at the stage of framing of charge, and that too in revision filed against the order framing charges. We are of the view that it is impossible to state at this stage that no case could possibly be made out for ultimate conviction of Respondent No.2. This being the case, we set aside the judgment of the High Court and restore that of the trial Court."
13. As far as the decisions in the case of Phool Chandra Arya (supra) and P.K. Gupta (supra), relied upon by learned Senior Counsel for the petitioner, are concerned, in those cases there was no charge under Section 120B of IPC against the applicant therein, whereas in the case at hand there are allegations of things done in pursuance of the conspiracy against the petitioner. So, the facts of the present case are clearly distinguishable from the facts of 'Phool Chandra Arya's case (supra) and P.K. Gupta's case (supra) and as such, the same are of no help to the petitioner.
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14. Considering the principles as enunciated by Hon'ble Supreme Court in above quoted decision; the material available in the charge sheet, this Court is of the considered opinion, that the trial Court did not commit any mistake by rejecting the discharge application of the petitioner and framing charge under Sections 120B, 420, 468, 471, 423, 200 of IPC and Section 7, 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988.against the applicant.
15. For the foregoing reasons, I do not find any good ground to interfere with the order impugned framing charge against petitioner and hence, the revision is liable to be and is hereby dismissed.
16. However, it is made clear that the observations made by this Court are only for the purposes of deciding present criminal revision against the orders rejecting application under Section 227 of CrPC and framing of charge against petitioner and shall have no bearing on the merits of case during trial. The trial has to be decided on the basis of evidence which would ultimately come on record and, therefore, it is made clear that the trial Court should not 15 get influenced by any of the observation made by this Court in this order. Petitioner will also be at liberty to raise all the grounds as are available to him, including the grounds raised in this revision, and the trial Court shall consider the same on its own merits in accordance with law.
17. Certified copy as per rules.
Sd/-
(Parth Prateem Sahu) Judge roshan/-