Jharkhand High Court
Kamla Kant Mishra vs State Of Jharkhand Through Vigilance ... on 11 February, 2022
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1715 of 2017
1. Kamla Kant Mishra
2. Lakshmikant Prasad
3. Hem Chandra Mandal
4. Devnath Tripathy @ Dev Nath Tripathy
5. Suraj Prasad Gupta
6. Ganesh Prasad Singh
7. Awadhesh Kumar Singh
8. Dhananjay Kumar Singh
9. Ram Parikha Tiwary
10. Gour Chandra Neogi @ Gaur Chandra Neogi
11. Bikramaditya Singh @ Vikraditya Singh
12. Hari Prasad Singh
13. Sheo Nandan Sahu
14. Ravi Bambha @ Ravi Bamba
15. Chandrama Singh
16. Nitayanand Singh @ Nitya Nand Singh
17. Alfa Toppo
18. Narendra Kumar Mishra
19. Sachidanand Prasad Singh
20. Subal Kumar Saha
21. Subhash Chandra Modhak @ Subha Chandra Modak
22. Rakesh Dwivedi .... .... Petitioner(s).
Versus
State of Jharkhand through Vigilance .... .... Opp. Party(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH : VIDEO CONFERENCING
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For the Appellant(S) : Mr. R.S. Mazumdar, Senior Advocate Mr. Pratik Sen, Advocate For the Vigilance : Ms. Priya Shrestha, Advocate
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09/11.02.2022 This criminal case is a classic example of misuse of the criminal law.
2. An FIR was registered against these petitioners and others under Section 420, 467, 468, 469,471,477-A, 109/120B/201 IPC and Section 13 (1) (D) r/w 13(2) of the Prevention of Corruption Act. The said FIR was registered as Vigilance P.S. Case No. 29 of 2000 (Vigilance Case no. 16 of 2000). These petitioners filed a petition for discharge before the trial court which was dismissed, resulting in this revision.
3. Sum and substance of allegation in the FIR in short is that a piece of land was registered in favour of Mahabir Sahkari Grih Nirman Sammittee, Dhurwa. The piece of land belongs to the members of the Scheduled Caste. As the member of the Schedule Caste were Raiyats, in terms of the Chota Nagpur Tenancy Act, before transferring the said land, permission of the Deputy Commission was necessary.
-2-It is alleged that the Deputy Commissioner accorded permission to the member of the Schedule Caste and sanctioned transfer of the land in terms of section 49 of Chota Nagpur Tenancy Act. After permission was granted, the society got the sale deed registered in their favour from the Raiyats, who were members of the Schedule Caste, in terms of the permission order. The amount was deposited in fixed deposit in the name of vendors who sold the land to the society as per the direction contained in the permission order. It has been alleged that the entire transaction is against the law. With ulterior motive the Deputy Commissioner has accorded permission and the Raiyats have been cheated and the entire transactions attracts offence of forgery & cheating and also attracts the provision of the Prevention of Corruption Act. The petitioners also connived with the officials for illegal gains. The FIR is against the government officials and the petitioners, who are the members of the Samittee.
4. After the FIR was instituted, the Vigilance Department investigated the allegation and thereafter filed a charge-sheet as according to the vigilance the case is true and all these petitioners and government officials are involved in the process which according to the vigilance attracts criminal offence.
5. These petitioners who happens to be the Secretary and members of the Mahabir Sahkari Grih Nrimal Sammeeti (hereinafter referred to as the 'Sammittee') approached the Special Judge, ACB, Ranchi by filing an application for discharge. Their case is that even if what has been mentioned in the FIR, no criminal offence is made out and thus they need to be discharged. The trial court after going through the documents on record and materials available, rejected the said application and thereby refused to discharge these petitioners. This order of refusal to discharge these petitioners is under challenge in this criminal revision.
6. Senior counsel appearing on behalf of the petitioners submits that by no stretch of imagination any criminal offence is made out. He submits that admittedly the petitioners are the Secretary and members of the said Sammittee who purchased the land after obtaining permission from the authority empowered to do so, under the CNT Act.
-3-He submits that the Deputy Commissioner who had granted the permission was also proceeded against and so are the other government officials including the Circle Officers, who had furnished their comments and had taken part in the process of said transfer. He submits that this Hon'ble Court in series of criminal writ applications have quashed the criminal proceeding against the government officials by a reasoned order. He submits that those orders attained finality. It is argued that on the date, the land was transferred in favour of the Sammittee, there was a valid order of permission, permitting the Raiyats to execute sale deed in favour of the Sammittee. As per him if there was any illegality in granting permission, the aggrieved party was at liberty to approach the higher forum, as the order of permission is quasi- judicial in nature. He states that neither the Raiyats nor any person ever approached any forum challenging the order permitting transfer, thus order permitting transfer has attained finality and cannot be questioned. It was further submitted that an order which has been passed by a quasi -judicial authority cannot be questioned by filing an FIR. He submits that this is nothing but an absolute abuse of the criminal process. He submits that none of the Raiyats ever came forward to question the transfer as Raiyats themselves has sought for permission to transfer of land in favour of the Sammittee. He submits that during investigation and in the FIR also there is no element to attract Sections 467,468, 471 and 120B IPC. He submits that there is nothing on record to suggest that any bribe was granted. He submits that from the aforesaid facts it is clear that Section 8 of the Prevention of the Corruption Act is also not attracted as there is no evidence to suggest that bribe was given to anyone. He submits that even if an order passed by a quasi -judicial authority or /a judicial authority is erroneous it cannot be said that the said order was passed after payment of bribe. He submits that if these type of FIR is filed, it will have a catastrophic effect and will damage the entire system. He lastly submits that the trial court did not consider these facts nor considered the law, but mechanically dismissed the discharge application.
-4-7. Counsel appearing on behalf of the ACB submits that since the trial court has found sufficient material, it dismissed the discharge application and have held that charges can be framed under Sections 467 468, 471 r/w 120B IPC and also under Section 8 of Prevention of Corruption Act. On query she submits that it is the Raiyats who had filed the application seeking permission to transfer the land in favour of the Sammittee and permission was duly accorded.
8. After going through the submissions of parties, I have gone through the impugned order and materials which has been placed on record. The fact upon which FIR has been lodged has already been mentioned above. From the impugned order a very interesting fact has surfaced. Admittedly, the land belong to the Raiyats who were member of Scheduled Caste. Their land can be transferred only after a proper permission is accorded by the Deputy Commissioner. This is the mandate of the Chota Nagpur Tenancy Act. The fact which surfaced from the impugned order is that the Raiyats themselves have filed an application before the Deputy Commissioner seeking permission from him to sell the land in favour of said Samiti. Initially, the said application was dismissed and permission was not granted. The Raiyats i.e land holders themselves approached the higher authority challenging the order by which their application to transfer the land was dismissed. The Appellate Authority remanded the matter for fresh consideration. Thereafter permission was granted. This is a very glaring aspects in this case. The prosecution is trying to come up with a story that it is the Raiyats who have been cheated as their land were grabbed. This allegation is negated by the act of the Raiyats wherein the Raiyats themselves approached the Appellate Authority challenging the initial order of the Deputy Commissioner whereby their application seeking transfer of land was rejected. This also clearly suggest that the Raiyats wanted to transfer the land in favour of the Samiti. If the intention of the Raiayts was to transfer the land in favour of the Samiti, then this Court fails to understand as to how the Raiyats were cheated once the land was transferred. The appeal of the Raiyats was allowed and the Deputy Commissioner was directed by the appellate authority to reconsider the same and pass a fresh order.
-5-Upon reconsideration, the Deputy Commissioner granted permission to the Raiyats to execute the sale deed and transfer the land in favour of the Samiti. The Raiyats thereafter executed the sale deeds and transferred the land in favour of the Samiti. These facts which is admitted and is reflected in the impugned order itself is enough to conclude that there is no element of cheating in the instant case.
9. Section 420 IPC deals with punishment for cheating and dishonestly inducing a person. Section 415 defines cheating. From the facts which has been narrated above it is clear that the Raiyats obtained permission as their intention was to sell the land and after obtaining permission they sold the land to the Samiti. When the Raiyats themselves had completed all paraphernalia, it cannot be said that the Raiyats have been cheated. In case of cheating there has to be a person who has been cheated and another who cheats. In this case the Raiyats have not been cheated. If no Raiyat is cheated then this court fails to understand as to how the member of Sammittee can be proceeded for cheating. Be it noted that the Raiyats have never complained against this said permission order nor complained against the execution of the sale deed rather they supported the sale. There is no element of cheating in this entire case to attract Section 420 IPC.
10. So far as attraction of Sections 467, 468, 471 IPC is concerned, I find that those sections relates to forgery of valuable security, forgery for the purpose of cheating and using as genuine, a forged documents. In this case there is no allegation that Raiyats have not filed any application seeking permission for transferring their land. It is not also a case that transfer application was forged or the sale deed was forged or any document was forged. There is also no allegation that the permission was sought for by a person who is an imposter and not the Raiyats. Even the FIR also does not suggest as to what are the documents which the prosecution claims to be forged. There is nothing in the impugned order also which can remotely suggest as to what are the documents which are forged. To conclude that offence under Sections 467, 468 and 471 IPC are attracted, at least it has to be mentioned or alleged as to which document is forged.
-6-Merely mentioning the sections of the Indian Penal Code in the charge- sheet without any factual basis will not attract the offence so mentioned. In this case, I find that merely the punishable sections of the IPC has been mentioned in the FIR and also in the impugned order, without applying mind and without verifying facts. In a most mechanical manner the charge-sheet has been filed and in a similar manner the impugned order has been passed. Even if it is held that the lands were transferred in violation of some provision of law (though it is not in the instant case as there was permission for transfer), then also Section 467, 468 and 471 of IPC are not attracted, in absence of even a whisper about any document which is forged. In this case the prosecution has miserably failed to state even as to what document or security has been forged. Thus section 467, 468, 471 IPC is also not attracted.
11. So far as Section 8 of the Prevention of Corruption Acts is concerned the same relates to bribing a public servant. There is nothing on record to suggest as to who has been bribed or whether any attempt has been made to bribe someone. From the FIR and from the impugned order this court gather an impression that just because the prosecution thinks that an order has been passed erroneously, there is an element to attract Section 8 of Prevention of Corruption Acts. This mind set of the prosecution is very dangerous and should be crushed at the very inception. To bring home a charge under Section 8 of Prevention of Corruption Act, it has to be specifically mentioned and it should come during investigation that there was a promise to give an undue advantage with the intention to induce the public servant to perform improperly a public duty or to reward such public servant for improper performance of public duty. If a public duty is performed improperly or the performance of a public servant is not proper, it cannot be presumed that his action was such because he was bribed. There cannot be a presumption. As mentioned earlier after going through the entire record I find that the prosecution has not brought any material which would attract the offence under Section 8 of Prevention of Corruption Act. Merely on presumption, the aforesaid sections have been incorporated.
-7-12. Further from the impugned order, I find that the Special Judge, ACB, Ranchi dismissed the discharge application mechanically. The Special Judge, ACB did not even whispered anything in his impugned order as to which document is forged, to conclude that there are materials to frame charge under section 467, 468, 471 IPC. The Special Judge has concluded that there is a violation of CNT Act. Even if there is violation of CNT Act, the same will not attract Section 467,468, 471 420 IPC nor provision of Section 8 of Prevention of Corruption Act.
13. Thus, from what has been held above, I find that there are no materials to frame charge against these petitioners under Section 467, 468, 471, 420 r/w 120B IPC and section 8 of the Prevention of Corruption Act. The conclusion reached by the Special Judge, ACB is absolutely erroneous and without any factual backing. Thus, the impugned order 20.6.2017 passed in Vigilance P.S. Case No. 29 of 2000 (Vigilance Case no. 16 of 2000) by the Special Judge ACB, Ranchi is quashed and set aside. Consequently the petitioners are discharged.
14. Accordingly, this application stands allowed.
(ANANDA SEN , J) anjali/ C.P 3