Punjab-Haryana High Court
Ram Sarup And Anr. vs State Of Punjab on 14 October, 1986
Equivalent citations: 1987CRILJ928
Author: M.M. Punchhi
Bench: M.M. Punchhi
ORDER M.M. Punchhi, J.
1. By means of this order. Cr.M. Nos. 3188-M and 3563-M of 1986 shall stand disposed of, since they arise out of the same prosecution.
2. Hardial Singh, a resident of Canada, but of India origin, owned some agricultural land in village Bapiana in District Bhatinda. On 6-6-1979, while in India, he mortgaged some of his land to Joginder Singh and his two sons Gurdarshan Singh and Sikandar Singh for a sum of Rs. 30,000/-. The mortgage was by means of a registered deed. In his absence, however, on 4-2-1980, mutation was entered by Jarnail Singh petitioner, who was the Patwari of the area. It so happened that he mistakenly/wrongly entered the mutation as if of sale by Hardial Singh in favour of Joginder Singh and others. As per departmental instructions, the entry required to be attested by the Field Kanungo. Since the Field Kanungo statedly was not available, the entry was got attested on 21-2-1980 from Babu Singh petitioner, who as the Senior-most Patwari acted as a Kanungo. The mutation came up for sanctioning before Ram Sarup petitioner, Naib Tehsildar (since retired) on 22-2-1980 who mistakenly/wrongly recording in his order that he had gone through the contents of the sale deed, ordered sanction of mutation of sale in favour of Joginder Singh and others.
3. Somewhere in October/November, 1982, Hardial Singh was informed in Canada that his land in revenue papers had been shown be to sold. Accordingly, to safeguard his interest, he came to India. It appears that on 4-1-1983, he filed a suit for declaration challenging the validity of the mutation and the interests it purported to have shown to have been transferred to Joginder Singh and others. The defendants Joginder Singh and others put in appearance before the Civil Court and did not dispute the error in the mutation. Consequently, the suit was decreed on consent by the Civil Court on 22-1-1983. Hardial Singh seemingly was satisfied thereafter when he obtained a decree in his favour.
4. The D.S.P. Vigilance, however, on 3-3-1983, lodged an F.I.R. against the three petitioners and the mortgagees for the various acts of omissions and commission. The offences were termed Under Section 5(2) of the Prevention of Corruption Act and Sections 420/467/469/120B of the Indian Penal Code. After investigation, the prosecution was launched in the Court of the Special Judge, Bhatinda. When the matter came up for consideration of charge, the learned Special Judge took the view that prima facie case Under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act against the three petitioners stood made out for entering/sanctioning the questioned mutation for obtaining pecuniary advantage to their co-accused, by abusing their official position. The Special Judge further found that a prima facie case Under Section 218 of the I.P.C. was also made out against the petitioners for preparing incorrect record of the questioned mutation as public servants which they knew to be incorrect and intended to cause loss to Hardial Singh. And lastly the Special Judge took the view that prima facie offence Under Section 120B of the Indian Penal Code was disclosed against all the accusedfor conspiring to prepare incorrect record of mutation so as to depict the mortgagees as vendees and commission of offence of corruption and preparation of incorrect record by the revenue officials-accused. It is the order of charge which has been questioned in the instant petitions.
5. So far as Ram Sarup petitioner is concerned, by the act of his alleged misconduct, offence was committed on 22-2-1980 when he sanctioned a wrong mutation. Undisputably, he retired from Government service on 31-1-1981. The prosecution against him was launched on 7-11-1985. .On his behalf, it has been contended that the prosecution is barred under Rule 2.2, Vol. II of the Punjab Civil Service Rules, interpretation of which was made by this Court in Des Raj Singal v. State of Punjab 1986 (1) Pun LR 82. This Court observed:
A plain reading of the afore-extracted rule puts a fetter that no criminal proceeding can" be instituted in respect of an event which took place more than four years before the date on which a complaint or report of a Police Officer, on which the Court takes cognizance, is made, keeping apart whether the officer was in service or retired or re-employed at that time. The embargo on institution of a criminal proceeding, though occurring in the Chapter meant for'pensions', apparently reserves the right to the Government of withholding or withdrawing a pension or part of it, if the pensioner is found guilty of grave misconduct or negligence during the period of service or re-employment.
It was further observed:
But a criminal judicial proceeding mandatorily is required to be instituted, in respect of an event within a period of four years of its taking place, reckoned on the date on which the Magistrate takes cognizance on the police report or complaint, as the case may be.
6. These were made in the context of a retired Government servant who was being dragged into criminal litigation after a lapse of more than four years of his retirement. The rule was so interpreted that a pensioner is not kept in a state of lurking fear about an event which took more than four years prior to the date on which the proseculion is launched against him.
7. As noticed earlier, Ram Sarup retired on 31-1-1981. The event was approximately a year earlier, having taken place on 22-2-1980. The prosecution was launched four years after the retirement i.e. on 7-11-1985. Obviously, the prosecution against him was barred in view of Des Raj Singal's case (supra). On this score alone, his petition deserves to succeed.
8. It is the case of the prosecution that all the three petitioners had committed criminal misconduct in discharge of official duty as described in Section 5(1)(d) of the Prevention of Corruption Act, 1947 which reads as follows:
If he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for another person any valuable thing or pecuniary advantage.
In elaboration it has been stated that a pecuniary advantage was obtained by the three petitioners for Joginder Singh and others inasmuch as they got Joginder Singh a sale instead of mortgage of the land. Inevitably, it has been urged that land was a valuable thing, the rights whereof had been managed to be transferred to Joginder Singh etc. by the petitioners by abusing their position as public servants by corrupt or illegal means. It is true, however, that the questioned mutation purports to show the event as sale instead of mortgage, which it actually was, but the legal effect of a mutation is not that any title is transferred. It is a settled principle of law that mutation confers no title. It is not even evidence of title. It indirectly can produce a result at a later stage when records of rights (jamabandis) are periodically corrected. Records of rights are later corrected on the basis of the earlier mutations and then the entries in the revenue records (jamabandis) start carrying a presumption of truth, though rebuttable. All the same, it cannot be said that the mutation had the legal effect of transferring ownership rights to Joginder Singh etc. instead of mortgagee rights. These entries are at best wrong but have no legal value, since no valuable thing or any pecuniary advantage stood given or conferred on Joginder Singh etc. by means of that mutation. The question of attraction of Section 5(1)(d) of the Prevention of Corruption Act in the circumstances thus would not arise. Therefore, I am of the added view so far as Ram Sarup is concerned that his prosecution under-S. 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act is uncalled for and is illegal. Similarly, the prosecution of the other two petitioners under the said provision of law is uncalled for and is illegal. The charge Under Section 5(1 )(d) read with Section 5(2) of the Prevention of Corruption Act is thus quashed.
9. Charge Under Section 218, Indian Penal Code, is based on the petitioners having prepared incorrect records being public servants. That section reads as follows:
218. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture. Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeitureor any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
It is plain from the language of the provision that the intention of the accused must be to cause or knowing it to be likely that he will thereby cause loss or injury to the public or to any person. The loss or injury to Hardial Singh complainant by making incorrect record was obvious, as he had to make special effort to have it rectified as also to forestall the danger of the mutation entry being carried forward in the succeeding jamabandi showing him to have been divested of the ownership of the land. By the preparation of the succeeding jamabandi, evidence of title in favour of Joginder Singh etc. could have been created. The only point material for the establishment of the charge would be the intention of the accused, that is to say, whether they had the requisite mens rea to achieve that object. For that purpose, evidence of the prosecution needs to be led and inferences derived therefrom. At the present stage, it cannot be said with positivity that the accused persons did not intend to cause or did not have the knowledge that it was likely to cause any loss or injury to Hardial Singh complainant when they prepared the incorrect record relating to the mutation and for that purpose and aid Section 120B of the I.P.C. has been invoked. Thus, for these reasons, I am of the considered view that charge Under Section 218 read with Section 120B of the I.P.C. suitably to be amended by the trial Judge can proceed against Babu Singh and Jarnail singh petitioners.
10. When the charge against the petitioners Under Section 5(2) of the Prevention of Corruption Act stands quashed, it automatically means that the Special Judge, Bhatirtda ceases to have jurisdiction over the matter Offences Under Sections 218 and 120B of the Indian Penal Code, are triable by a Magistrate 1st Class. Accordingly, the trial of the aforesaid two petitioners along with the trial of the three other accused would stand transferred to the Court of the ilaqa Magistrate concerned. Formal orders regarding that shall be passed by the learned Special Judge. The learned Magistrate on receipt of the case shall suitably amend the language of the charge Under Section 120B of the I.P.C., so as to be in accord with the letter and spirit of this order. He will proceed with the trial expeditiously.
11. With these directions, the petition of Ram Sarup is allowed holding the trial against him as time-barred whereas petitions of Babu Singh and Jarnail Singh petitioners are partially allowed to the extent above indicated. Parties through their counsel are directed to put in appearance before the Special Judge for suitable orders on 10th Nov., 1986.