Madhya Pradesh High Court
Rakesh Kumar Shivhare vs The State Of Madhya Pradesh on 3 February, 2017
1 M.Cr.C. No.10937/2015
(Rakesh Kumar Shivhare Vs. State of M.P.)
03.02.2017
Shri R.K.Sharma, counsel for the applicant.
Shri Girdhari Singh Chauhan, Public Prosecutor for
respondent/State.
Shri Sanjay Dwivedi, SDM-Bhind and Shri Sanjay Singh Kushwah, Town Inspector, Police Station- City Kotwali, Bhind is present in person.
This petition under Section 482 has been filed for quashing the FIR in Crime No.309/2010 registered by Police Station-City Kotwali, Bhind for offences punishable under Sections 420, 467, 468, 471/34 of IPC as well as the proceedings pending in the Court of CJM, District-Bhind in Criminal Case No.289/2013.
The necessary facts for the disposal of this petition are that a FIR was registered against the applicant and several persons on 23.12.2010 on the allegations that the applicant and other co- accused persons have purchased a piece of land bearing survey No.920 and 921, which is a Government land. After completing the investigation, the police filed the charge-sheet.
It is contended by the applicant that he has not purchased any land out of survey Nos.920 and 921 and in fact he has purchased a piece of land out of survey No.923/1 which is not a Government land but, it is a private land.
On the report of SDO (Revenue) dated 16.12.2012, the police had registered the FIR against the applicant and other co-accused persons on the ground that in spite of the stay order passed by the Collector on 15.12.1992, the applicant had purchased the land and is in possession of a part of Khasra Nos.920 and 921, whereas, in the revenue record, it is a Government land.
By filing this application it was contented by the applicant 2 M.Cr.C. No.10937/2015 that he has nothing to do with survey No.920 & 921 and he has purchased and in possession of a part of land i.e. survey No.923/1 and it is a private land. Therefore, this Court by order dated 11.02.2016 observed as under:-
"Learned counsel for the petitioner pointing out the sale deed annexed at page Nos. 68 to 71 contends that the sale deed in question was in regard to a different Survey Number i.e. 923/1 situated at Pench No.2 Ward No.34.
State counsel is directed to find out as to how the petitioner has been implicated in the offence of cheating and forgery?"
In compliance of this order, the OIC of the case filed his report dated 04.04.2016 and mentioned as under:-
^^3- ;g fd nkSjku foospuk vkosnd@vfHk;qDr ds fo:) izFke n`"V;k lk{; izkIr gksus ds mijkar vkosnd@vfHk;qDr dks fxjQ~rkj fd;k tkdj pkyku izLrqfr dh dk;Zokgh l{ke U;k;ky; ds le{k /kkjk 173 ¼8½ na-iz-la- ds rgr dh xbZ gSA 4- ;g fd izdj.k fopkj.k U;k;ky; ds le{k fopkjk/khu gksdj yafcr gSA izdj.k ds pkyku dks fujLr fd;k tkuk izdj.k dh orZeku fLFkfr dks /;ku esa j[krs gq, U;k;ksfpr ugh gSA izdj.k esa vkosnd@vfHk;qDr }kjk jksd yxkus ds i'pkr mDr IykWV dks dz; fd;k x;kA^^ Being dissatisfied with the report of the State, this Court by order dated 28.4.2016 observed as under:-
"Reply filed by the State does not disclose as to why the petitioner is made an accused in the impugned FIR bearing Crime No. 309/2010 under Ss 420, 467, 468, 417 read with Sec 34 of IPC registered at Police Station Kotwali Distt. Bhind, since it is alleged by the petitioner that he is the owner of land bearing Survey No. 923/1 as per the sale deed dated 25.03.2006 annexed herewith.
The FIR clearly mentions that the offence in question being alleged is in regard to Survey no. 920/1 and 921/1.
State counsel is directed to file an additional affidavit in that regard before the next date of hearing, failing which the prayer for interim relief shall be considered on the given material available on record."
In compliance of the order dated 28.4.2016, 3 M.Cr.C. No.10937/2015 additional report was filed on 16.6.2016. Paragraphs 3 and 4 are mentioned as under:-
^^3- ;g fd izdj.k esa ?kVuk LFky ij mDr vfHk;qDr dk uke vuqfoHkkxh; vf/kdkjh jktLo ds ;gka ls fnukad 16-12-2010 dks Hksts 'kkldh; Hkwfe losZ dz- 920] 921 jdok 15 ch?kk 14 fo'ok esa vfHk;qDr dk uke jkds'k f'kogjs ds LFkku jkedqekj ys[k fd;k x;k Fkk fdUrq vfHk;qDr dk vlyh uke jkds'k dqekj f'kogjs gS] ds laca/k esa Hkh vuqfoHkkxh; vf/kdkjh jktLo }kjk izfs "kr izfrosnu dh lR;rk dh tkudkjh izkIr dh tk jgh gSA izfrosnu izn'kZ vkj&1 gSA 4- ;g fd mDr izdj.k esa vuqfoHkkxh; vf/kdkjh jktLo ds izfrosnu esa vfHk;qDr vkosnd dk uke dk mYys[k gksus ls vkosnd dks vfHk;qDr cuk;k x;k gSA izdj.k esa vuqla/kku dh dk;Zokgh dh tk jgh gSA izdj.k esa mDr vkosnd@vfHk;qDr ds fo:) nLrkosth lk{; rFkk rRdkyhu vuqfoHkkxh; vf/kdkjh jktLo fHk.M ds izfrosnu ds laca/k esa vuqla/kku fd;k tk jgk gSA vuqla/kku esa ;fn vkosnd@vfHk;qDr ds fo:) rF;@lk{; izdV ugh gS rks mldks izdj.k ls vafre izfrosnu izLrqfr ds le; i`Fkd dj fn;k tkosxkA^^ Again by order dated 13.7.2016, this Court observed that additional reply has been filed on behalf of the State/respondent, however, paragraph 3 thereof is too vague. Therefore, learned counsel for the State is directed to submit specific and clear reply in the light of order dated 28.04.2016."
Thereafter, the case was adjourned on 1.8.2016, 21.9.2016, 28.9.2016, 8.11.2016 and 1.12.2016, giving an opportunity to the respondent/State to file the specific additional affidavit. When the respondent chose not to file any additional affidavit, therefore, this Court vide order dated 15.12.2016 directed for personal appearance of the SHO, Police Station City Kotwali, District Bhind. Today, Shri Mirja Asif Beg, Town Inspector, Police Station City Kotwali, Bhind appeared. But surprisingly and shockingly for the reasons best known to him he did not bring the case diary with him.
In compliance of the order dated 15/12/2016, a progress report dated 22.12.2016 has been filed in which it has been specifically admitted by the respondent/Prosecution Agency that by mistake the applicant has been made an accused and still they are trying to seek clarification from the SDO(Revenue) that on what basis he had named the present applicant as an accused in the present case.
In progress report dated 22.12.2016, the respondent submitted that now the SDO (Revenue) by his letter dated 14.6.2016 has admitted that in fact no 4 M.Cr.C. No.10937/2015 offence is made out against the present applicant. Report of SDO (Revenue) is as under:-
^^fo"k;kafdr lanfHkZr i= ds }kjk ;kfpdk fo0 vkijkf/kd izdj.k dzekad 10937 ds laca/k esa rglhynkj fHk.M ls oLrq fLFkfr dh fjiksVZ cqykbZ xbZA rglhynkj fHk.M }kjk vius i= dzekad 908 fnukad 14-6-2016 ls voxr djk;k x;k gS fd fookfnr losZ uEcj 920 jdok 0-418] 921 jdok 2- 759] vfHkys[k esa 'kkldh; ntZ gksdj isp u 0a 1 ntZ gS tcfd vk0u 0a 923@1 jdok 2-602 o 922 jdok 0-199 lfEefyr [kkr s ds gksdj HkwfeLokeh ntZ gSA vfHkys[k esa vk0u a0 922 jdok 0-199] 923@1 jdok 2- 602 ds va'kHkkx 0-015 vkj sij vkjksih jkds'k dqekj iq= izgykn nkl f'kogjs dk uke ntZ u gksdj fodzsrk t;izdk'k vk0 v'kQhZyky tkfr oS'; fuoklh lnj cktkj fHk.M dk uke ntZ gS tks fd vk0u 0a 922 jdok 0-199 o 923@1 jdok 2-602 ds lfEeykrh [kkrs esa fLFkfr gS tcfd eksds ij jD'ks ds eqrkfcd vk0u a0 923@1 jdok 2-602 e sa vkjksih jkds'k dqekj f'kogjs dk edku fLFkr gSA rglhynkj fHk.M }kjk izLrqr fjiksVZ e; lgi=ksa ds vko';d dk;Zokgh gsrq vkidh vksj i= ds layXu izfs "kr gSA^^ Paragraphs 3 and 4 of the progress report dated 22.12.2016 are as under:-
^^3- ;g fd i= fnukad 14-06-2016 ls vuqfoHkkxh; vf/kdkjh jktLo }kjk tkudkjh izsf"kr dh xbZ gS vfHkys[k esa vk-u a- 922 jdok 0-199] 923@1 jdok 2-602 ds va'k Hkkx 0-015 vkjs ij vkjksih jkds'k dqekj iq= izgyknnkl f'kogjs dk uke ntZ u gksdj fodzsrk t;izdk'k vk0 v'kQhZ yky tkfr os'; fuoklh lnj cktkj fHk.M dk uke ntZ gS tks fd vkod ua- 922 jdok 0-199 o 923@1 jdok 2-602 ds lfEeykrh [kkrsa esa fLFkr gS] tcfd ekSds ij uD'ks ds eqrkfcd vkod ua- 923@1 jdok 2- 602 esa vkjksih jkds'k dqekj f'kogjs dk edku fLFkr gSA bl i= ds vk/kkj ij vkosnd vkjksih ugh curk gSA i= fnukad 14-06-16 dh izfr izn'kZ ,&2 gSA 4- ;g fd] mDr i= ds i'pkr~ fnukad 23-07- 16 ds i= esa ;g tkudkjh Li"V :i ls pkgh xbZ gS fd vkjksih jkds'k dqekj f'kogjs dks fdl vk/kkj ij vkjksih cuk;k x;k gS] ;g tkudkjh vkt fnukad rd vuqfoHkkxh; vf/kdkjh jktLo }kjk ugh nh xbZ gS fd iwoZ esa izfrosnu fnukad 16-12-10 esa vkosnd dks fdl vk/kkj ij vkjksih cuk;k x;k Li"V tkudkjh vuqfoHkkxh; vf/kdkjh jktLo }kjk miyC/k ugh djkbZ xbZ gSA^^ Considering the various replies filed by the State, this Court by order dated 22.12.25016 issued show cause notice to the various authorities as to why compensation may not be granted on the ground of violation of fundamental right.
On 13.01.2017, the State counsel prayed for sometime to file some additional reply. Today, an additional reply has been filed in which the respondent has specifically admitted that the applicant 5 M.Cr.C. No.10937/2015 has not purchased any part of Government land bearing survey No.920 and 921 and infact applicant has purchased land forming part of Khasra No. 923/1 and it has also been admitted specifically that survey No.923/1 is a private land. It is further mentioned that the Tehsildar-Bhind by his letter dated 17.08.2016 had clarified that the applicant has not sold or purchased any part of Government land bearing survey Nos.920 and 921. It is also admitted in the reply that earlier an incorrect information was sent by the District Registrar and because of the said incorrect information and on its basis the FIR was lodged. It is also mentioned that the Sub- Registrar who had prepared the report has already expired and therefore, it could not be ascertained that whether the incorrect report sent by him was intentional or bonafide.
The relevant extract of reply filed on 03.02.2017 is as under:
Þ4- ;g fd] izdj.k esa iwoZ esa izHkkjh vf/kdkjh uxj iqfyl v/kh{kd fHk.M ftyk fHk.M Fks] ftuds }kjk iwoZ esa tokc izLrqr fd;s x;s Fks] mudks pkgh xbZ tkudkjh rRdkyhu rglhynkj rglhy fHk.M ftyk fHk.M }kjk fnukad 01-03-13 ls Fkkuk izHkkjh Fkkuk dksrokyh dks bl vk'k; dh tkudkjh nh xbZ gS fd Hkwfe losZ dza- 920] 921 'kkldh; gS rFkk vkosnd }kjk Hkwfe losZ dza- 923@1 esa ls dqN vkaf'kd fgLlk dz; fd;k x;k gSA mDr losZ dza- 923@1 futh LokfeRo dh iwoZ ls gh pyh vk jgh gS 5- ;g fd] izdj.k esa rglhynkj rglhy fHk.M ftyk fHk.M } kjk izfrosnu fnukad 17-08-16 ls Hkh Li"V fd;k gS fd vkosnd dk Hkwfe losZ dza- 920] 921 esa fdlh izdkj ls dz; fodz; ugha fd;k x;k gSA izfrosnu fnukad 17-08-16 dh izfr izn'kZ ,&2 gSA 8- ;g fd ftyk iath;d ftyk fHk.M ds i= fnukad 17-01-17 ls tkudkjh Li"V gksus ls orZeku izHkkjh vf/kdkjh }kjk iqu% Li"V izfrosnu ftyk iath;d ls pkgk x;k ftlds rkjrE; esa ftyk iath;d }kjk Li"V fd;k fd mDr tkudkjh rRdkyhu ftyk iath;d Jh ds-,l- iVok }kjk rRdkyhu mi iath;d Jh ,e-lh- vkgwtk ds }kjk rS;kj dh xbZ tkudkjh ds vk/kkj ij Hksth xbZ FkhA orZeku esa Jh ds-,l- iVok lsokfuo`Rr gks x;s gSa rFkk mi iath;d ftuds }kjk tkudkjh rRdkyhu iath;d dks izsf"kr dh xbZ mDr mi iath;d Jh ,e-lh- vkgwtk dh e`R;q fnukad 20-04-15 dks jkSu esa gks pqdh gSA ftyk iath;d fHk.M }kjk izsf"kr izfrosnu fnukad 25-01-17 dh izfr izn'kZ ,&8 gSA 9- ;g fd rRdkyhu vuqfoHkkxh; vf/kdkjh jktLo }kjk tks izfrosnu fnukad 16-12-2010 Fkkuk izHkkjh dks lacksf/kr djrs gq, izfs "kr 6 M.Cr.C. No.10937/2015 fd;k x;k gS og mi iat;d ,oa ftyk iath;d ds izfrosnu ds vk/kkj ij izkIr tkudkjh ds vuqlkj izsf"kr fd;k x;k gSA bl izdkj orZeku izHkkjh vf/kdkjh vuqfoHkkxh; vf/kdkjh jktLo }kjk laiw.kZ tkudkjh izkIr djus ds mijkar ;g rF; Li"V gqvk gS fd izdj.k esa ftu mi iath;d }kjk izfrosnu izsf"kr fd;k x;k Fkk] mlesa =qfV gqbZ gS] tks rRdkyhu mi iath;d }kjk Hkwyol dh xbZ gS vFkok tkucw>dj dh xbZ gS ;g Li"V ugha gqvk gSA mDr izfrosnu mi iath;d Jh ,e-lh- vkgwtk ds }kjk rS;kj fd;k tkdj ofj"B vf/kdkfj;ksa ds ek/;e ls izFke lwpuk fjiksVZ iathc) fd;s tkus gsrq izsf"kr fd;k x;k FkkA mDr mi iath;d dh e`R;q gks pqdh gSAß However, from the previous conduct of the respondent, it is clear that initially the prosecution agency was not ready to even look into the ground raised by the applicant in the present petition. In the first reply which was submitted by the State on 04.04.2016, it was mentioned that the applicant has purchased a Government land and since, the matter is pending before the Court therefore, it would not be in the interest of justice to quash the charge-sheet in exercise of powers under Section 482 of Cr.P.C. The relevant paragraph of reply dated 04.04.2016 is as under:-
Þ4- ;g fd izdj.k fopkj.k U;k;ky; ds le{k fopkjk/khu gksdj yafcr gSA izdj.k ds pkyku dks fujLr fd;k tkuk izdj.k dh orZeku fLFkfr dks /;ku esa j[krs gq, U;k;ksfpr ugha gSA izdj.k esa vkosnd@vfHk;qDr }kjk jksd yxkus ds i'pkr~ mDr IykWV dks dz; fd;k x;kAß When the respondent was directed to file a specific reply to the contentions raised by the applicant in the present petition, again an evasive reply was submitted by the State on 16.06.2016. When again the State was directed to file specific reply, then for the first time the respondent started admitting that the applicant is not in possession of any Government piece of land, whereas, he is in possession of land bearing Khasra No.923/1, which is a private land. Now when this Court issued the notice to the respondents as to why the compensation may not be awarded for violation of the fundamental right of the applicant by filing a charge-sheet on the incorrect allegations, then for the first time the respondents have come up with the case that in fact, the applicant has not 7 M.Cr.C. No.10937/2015 purchased/sold any piece of Government land. However, still the bonafides of the respondents are not reflected from the reply which was filed on 03.02.2017. Once, the prosecution agency had come to a conclusion that the applicant has not committed any offence and by the mistake of Deputy Registrar, a charge-sheet has been filed on the basis of incorrect facts, then they could have corrected their mistake by filing an application under Section 321 of Cr.P.C. before Trial Court for withdrawal of the applicant from prosecution. However, no such steps have been taken by the respondents.
Under these circumstances, this Court is of the view that the respondents not only filed the charge-sheet without ascertaining the reality but, they also avoided to file any proper reply before this Court and only when again and again it was directed that vague reply should not be filed they have now come up with a case that in fact, the applicant is innocent. Under these facts and circumstances, this Court is of the view that the prosecution agency has violated the fundamental right of life and liberty of the applicant.
In the case of D.K.Basu Vs. State of West Bengal reported in (AIR 1997 SC 610) has held as under:-
"55. Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The 8 M.Cr.C. No.10937/2015 objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence(irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."
By order dated 22.12.2016, notices were issued to the State of Madhya Pradesh, through Chief Secretary Collector-Bhind, Superintendent of Police, SDO(Revenue-Bhind) and Station House Officer, Police Station Bhind to show as to why the compensation may not be awarded to the applicant? But, instead of full opportunity given to them they have chosen not to file any reply to the said show cause notice which clearly means that they do not have any say in the matter.
Considering the fact that the FIR was registered on 23.12.2010 and thereafter, the charge-sheet was filed in the month of March, 2013, it is clear that for the last six years, the applicant must have undergone the agony of facing the criminal prosecution which must have tarnished his image in the society.
Under these circumstances, it is directed that the State of 9 M.Cr.C. No.10937/2015 Madhya Pradesh shall pay the cost of Rs.25,000/-(Rupees Twenty Five Thousand only) to the applicant within a period of sixty days from today.
Accordingly, the charge-sheet filed against the applicant as well as the criminal proceedings pending before the Court of CJM, District-Bhind in Criminal Case No.289/2013 qua, the applicant are hereby quashed.
Accordingly, this petition succeeds.
(G.S.Ahluwalia) Judge Sha