Jammu & Kashmir High Court
Vijay Kumar And Anr. vs State And Ors. on 30 November, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No. 603/2015, IA Nos. 01/2018 & 01/2015
Date of order:- 30.11.2018
Vijay Kumar and Anr. Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Abhimanyu Sharma, Advocate vice
Mr. Abhinav Sharma, Advocate..
For respondent (s) : Mr. Raman Sharma, Dy. AG.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the medium of instant petition filed under Section 561-A Cr.P.C, the petitioners seek quashing of FIR No.35/2015, registered by respondent No.2 at the instance of respondent No.3, namely, Baldev Singh against the petitioners for alleged commission of offences under Sections 5 (1)(d), 5 (2) P.C. Act and Sections 468, 471 and 120-B RPC.
2. The factual matrix of the case is that in the month of July, 2013, the petitioners were posted as Tehsildar, Akhnoor and Patwari, Khour respectively when respondent Nos.4 and 5 moved an application on 11 th July, 2013, which though was addressed to Naib Tehsildar Kour, however, keeping in view the competence being vested in Tehsildar, the said application was referred to petitioner No.1, wherein respondent Nos.4 and 5 requested for correction of Girdawari (Sehat Indraj) of entries in revenue record in respect of land measuring 02 Kanals and 13 Marlas falling under Khasra No.1830, situate at village Khour, Tehsil Akhnoor, District Jammu. In the said application it was stated that the respondent Nos.4 & 5 were in cultivating possession of said land since long time back, CRMC No. 603/2015 a/w IA Nos. 01/2018 and 01/2015 Page 1 of 8 2 however, the name of respondent No. 3 was wrongly entered in the revenue record, which needed rectification. The aforesaid application moved by the respondent Nos.4 and 5 was supported by an affidavit sworn by respondent No.3, which was duly registered by the Judicial Magistrate 1 st Class, Akhnoor on 30th March, 2013, wherein respondent No. 3 has stated that the land measuring 02 Kanals and 13 Marlas falling in the aforesaid Khasra Number was under cultivating possession of respondent Nos. 4 and 5 since long time back and that the Girdawari of the said land was wrongly entered in the name of the respondent No. 3, which required rectification and it was further stated in the affidavit that the respondent No. 3 had no objection, if the Girdawari of the aforesaid land was transferred in the name of respondent Nos. 4 and 5 by effecting 'Sehat Indraj'. The respondent No. 3 was identified by the respondent No. 6. The aforesaid application moved by the respondent nos. 4 and 5 was considered by the petitioner No.1 and in turn, the petitioner No.1 directed the petitioner No.2 for conducting detailed verification and for submission of the report after conducting the verification. Thereafter, petitioner No. 2 conducted the detailed verification and submitted the report on 20th July, 2013; that as per the physical position on spot and as per the statements of the residents of the village Khour, the respondent Nos.4 and 5 were found to be in possession of the land measuring 02 Kanals and 03 Marlas only instead of 02 Kanals and 13 Marlas during Rabi 2013.
3. It is stated in the instant petition that since under the Land Revenue Act and various standing orders, correction of Girdawari (Sehat Indraj) requires attestation of Mutation, which was required to be attested by holding a camp and, accordingly, the petitioner No.1 held a public camp on 24th July, 2013 at village Kour and on the basis of public statement of respondent No. 4 that the land measuring 02 Kanals and 03 Marlas under Survey No. 1830 was in cultivating possession of respondent No.4 and his brother, i.e., CRMC No. 603/2015 a/w IA Nos. 01/2018 and 01/2015 Page 2 of 8 3 respondent No. 5, but that the Girdawari has wrongly been entered in the name of the respondent No.3, further that respondent No.3 had sworn an affidavit to the effect that correction in the revenue record be made in favour of respondent Nos.4 and 5. It is also recorded that none of those present had any objection to what respondent No.4 had publically stated and it was on this basis that Sehat Indraj in respect of land measuring 02 Kanals and 03 Marlas falling under Khasra No.1830 was affected in favour of the respondent Nos.4 and 5. The proceeding conducted by the petitioner No.1 was duly acknowledged and signed by the respondent Nos.4 and 5; Balbir Singh, Puran Chand, Sukhvir Singh and village Chowkidar-Kewal Krishan, all residents of the concerned village Khour.
4. It is also stated in the instant petition that after a period of about two years, respondent no.3 filed a Complaint before the respondent No.2 that the affidavit, which was sworn by the respondent No. 3, was in fact never sworn by him and that someone else impersonating respondent No.3 had appeared before JMIC, Akhnoor and alleging that the petitioners had committed forgery and by misuse of official position, the petitioners committed offences under Sections 5 (1) (d), 5 (2) P.C. Act and Sections 468, 471 and 120-B RPC and, accordingly, respondent No.2 registered impugned FIR No.35/2015 for alleged commission of offences by the petitioners under Sections 468, 471 and 120-B RPC. In view of the aforesaid factual backdrop, the petitioners have approached this Court by way of instant petition.
5. Objections have been filed on behalf of respondent No.2. The stand taken therein is that the petitioners have misused their official position in giving benefit to respondent Nos.4 and 5. The matter requires further investigation. The aforesaid FIR is the outcome of verification conducted into the allegations that Sh. Vijay Kumar, the then Tehsildar, Khour and Sh. Padam Kumar, the then Patwari, Halqa Khour (petitioners) in connivance with the CRMC No. 603/2015 a/w IA Nos. 01/2018 and 01/2015 Page 3 of 8 4 one-Joginder Singh, i.e., respondent no. 4 and Sikander Singh-respondent No. 5, both sons of Babu Ram R/o Village Khour changed the Khasra Girdawari of land bearing Khasra Girdawari No.1830 measuring 02 Kanals and 03 Marlas situated at village Khour, Tehsil Akhnoor, Jammu in the year 2013 in their name from the name of its original owner, Sh. Baldev Singh- respondent No.3. During the course of enquiry, prima-facie the allegations have been proved against the petitioners and others. Further, during the course of enquiry, it was found that the land measuring 02 Kanals and 13 Marlas in Khasra No. 1830 min was purchased by the respondent No.3 in the year 1962 vide Sale Deed dated 24th January, 1962 along with another land in Khasra No.1809 min and the same was under his continuous possession since the year 1962.
6. It has also been stated in the objections that as per Khasra Girdawari, the said land was recorded in favour of respondent No.3. It was also found that Sehat Indraj Girdawari for the land measuring 02 Kanals and 03 Marlas of the Khasra No. 1830 min was recorded in favour of respondent Nos. 4 and 5 vide attestation of mutation No.3288 in the absence of respondent No.3 in the year 2013. Further, the affidavit, which was considered by the petitioners while attesting mutation in favour of respondent Nos.4 and 5 has been found as fake and forged during the course of enquiry. The affidavit produced by the respondent Nos.4 and 5 before the petitioners was managed by them by producing/showing someone as respondent No.3, duly identified by one-Balvinder Singh (respondent No.6) before the learned Munsif Judicial Magistrate 1st Class, Akhnoor. During the course of enquiry, respondent Nos. 3 and 6 have denied the signing of any affidavit before the learned Judicial Magistrate 1st Class, Akhnoor. The land under question was continuously under the cultivating possession of respondent No. 3 and his sons, which is clear from the revenue record as well, was only after the affidavit produced by the respondent Nos.4 and 5 before the CRMC No. 603/2015 a/w IA Nos. 01/2018 and 01/2015 Page 4 of 8 5 petitioners after hatching a conspiracy with revenue officials got the mutation of the land measuring 02 Kanals and 03 Marlas changed in their favour for the period Rabbi in the year 2013, mentioning therein that the land in possession of respondent No.3 belongs to him, however, as per revenue record, the cultivating possession of the same has uninterruptedly remained with respondent No.3 and his sons since year 1962. The petitioners, who were under obligations to call the other party (respondent No.3) before passing an adverse order pertaining to land, as mentioned above without ensuring presence of respondent No.3 in camp office held at Khour on 24th July, 2017 with ulterior motive and in connivance with beneficiaries changed the Girdawari vide Mutation No.3288 of the said land of respondent No.3 illegally in the name of respondent Nos.4 and 5, thereby conferring undue benefit upon them by abuse of their official position.
7. I have considered the rival contentions.
8. The contents of FIR reads as under:-
"Verification conducted into the allegations levelled against Revenue Officers/Officials of Tehsil Akhnoor has revealed that one Baldev Singh S/o Munshi Singh R/o Village Khour, Tehsil Akhnoor, was in possession and ownership of land measuring 02 kanal and 03 marlas falling under Khasra No.1830 at village Khour Akhnoor. The accused officers/officials S/Shri Vijay Kumar, the then Tehsildar Akhnoor and Padam Kumar, the then Patwari Halqa Khour by hatching a criminal conspiracy with Joginder Singh and Sikander Singh, both sons of Babu Ram R/o village Khour, who by abuse of their official position in furtherance of criminal conspiracy manipulated the record on the basis of a fake affidavit (Mukhtar-e-Aam) purportedly shown executed by original owner Baldev Singh in their favour. The accused CRMC No. 603/2015 a/w IA Nos. 01/2018 and 01/2015 Page 5 of 8 6 public servants with an ulterior motive, against illegal consideration did not choose to call original owner for authentication of said affidavit, instead of their own changed the name of original owner Shri Baldev Singh in Girdawri to above referred beneficiaries.
In view of the above discussed facts, it is prima facie established that the Revenue Officers/officials in connivance with beneficiary namely Joginder Singh and Sikander Singh exhibited gross misconduct by blatant abuse of their official position thereby conferred undue benefit upon them. The aforesaid acts of omission/commission on the part of accused public servants S/Sh. Vijay Kumar, the then Tehsildar Akhnoor and Padam Kumar, the then Patwari Halqa Khour and beneficiaries Joginder Singh and Sikander Singh discloses commission of cognizable act and punishable u/s 5(1)(d) r/w 5(2) P.C. Act and Section 468, 471, 120-B RPC. Accordingly, the case is registered under FIR No.35/2015 against the above named accused and the investigation is entrusted to Shri Gurnam Singh Inspector of PR Wing of P/S Vigilance Organisation, Jammu."
9. From bare perusal of FIR and objections, it is evident that cognizable offence has been made out as petitioners being revenue officers have misused the official position and in conspiracy with respondent Nos.4 & 5 and in order to deprive respondent no.3 from his ownership over land measuring 2 kanal 13 marlas bearing Kh. No.1830 situated at village Khour, Tehsil Akhnoor, forged and prepared a false affidavit of respondent no.3 thereby stating that land in dispute is in possession of respondent Nos.4 & 5; this affidavit has duly been sworn before Magistrate on dated 30.03.2013, by way of impersonation and deponent (allegedly respondent CRMC No. 603/2015 a/w IA Nos. 01/2018 and 01/2015 Page 6 of 8 7 no.3) was got identified by respondent no.6; thereafter petitioners on some extraneous consideration attested Mutation no.3288 dated 24.7.2013 only on the basis of said affidavit without calling the original owner and following procedure as laid down in Rule 4 of Agrarian reforms Act. As per this rule, Tehsildar has to conduct inquiry on spot while attesting the mutation; he has to call original owner in possession of land especially before changing his ownership and attested the new mutation.
10. FIR has been lodged after preliminary verification, in which it was revealed that respondent no.3 is in continuous possession of land since 1962 by virtue of sale deed dated 24.01.1962.
11. The argument of counsel for petitioners that petitioner no.1 visited the spot before attesting the mutation, as per Annexure D, has already been refuted by respondent-State thereby stating that petitioner no.1 visited in the capacity of Tehsidar along with District Sports Officer for construction of sports stadium and not for inquiry as per rule.
12. The law with regard to quashing of FIR is now well settled. FIR can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an exfacie all merited prosecution is throttled at the threshold without allowing the material in support of it.
13. This court while exercising the power under section 561-A Cr.P.C., does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate investigation. This is discretionary power vested in High Court to do substantial justice. It is not case of petitioners that there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal CRMC No. 603/2015 a/w IA Nos. 01/2018 and 01/2015 Page 7 of 8 8 proceeding is instituted) to the institution and continuance of the investigation.
14. In view of above discussion this petition is dismissed. Interim stay, if any, is vacated.
(Sanjay Kumar Gupta) Judge Jammu 30.11.2018 Narinder CRMC No. 603/2015 a/w IA Nos. 01/2018 and 01/2015 Page 8 of 8