Madhya Pradesh High Court
Balmik Gupta vs The State Of Madhya Pradesh on 13 November, 2017
1 M.Cr.C. No.8339/2017
(Balmik Gupta and another Vs. State of M.P. and others)
Jabalpur : 13/11/2017
Shri R.D. Tiwari, Counsel for the applicant.
Shri Ajay Tamrakar, Public Prosecutor for respondent
no.1/State.
Shri A.P. Singh, Counsel for respondent no.2. Heard finally.
This application under Section 482 of Cr.P.C. has been filed against the order dated 28-3-2017 passed by A.C.J.M. Shahdol in an unregistered criminal complaint of 2017 passed under Section 156(3) of Cr.P.C. as well as the F.I.R. in crime No.251 of 2017 registered at Police Station Beohari, Distt. Shahdol for offence under Sections 420, 467, 468, 471, 217, 218, 219, 120B and 506 of I.P.C.
The facts necessary for the disposal of the present application in short are that the complainant/respondent no.2 filed a Criminal Complaint against the applicants and others for offence under Sections 420, 120B, 467, 468, 471, 217, 218, 219 and 506 Part II of I.P.C. It was alleged in the complaint that the accused no.1 to 3 are the real brothers and sister being the children of Late Smt. Urmila whereas the accused no.4 was working on the post of S.D.O., Beohari, Distt. Shahdol. By a registered sale deed dated 20-10-1993, the applicants and his brother Devesh Pratap Singh had purchased Khasra No. 6 area 14 acres from Smt. Urmila Devi for a consideration of Rs.50,000/-. Thereafter, their names were also mutated in the revenue record and were also placed in possession. Their names were mutated in the year 1997. It was alleged that after the death of Smt. Urmila Singh on 17-10-2010, the accused 2 M.Cr.C. No.8339/2017 (Balmik Gupta and another Vs. State of M.P. and others) no.1 came in contact with some unscrupulous persons and with an intention to frustrate the sale deed, filed an appeal against the order dated 31-1-1997 i.e., the order of mutation. The accused no.4, without hearing the complainant allowed the appeal by order dated 27-12-2014. 28-12-2014 was a holiday being Sunday and on 29-12-2014, the name of accused No.1 was recorded in the revenue records and on 30-12-2014, a sale deed was executed in favor of applicants and other persons. Considering the allegations made in the complaint, the Magistrate passed an order dated 28-3-2017 under Section 156(3) of Cr.P.C. Consequently, the F.I.R. has also been registered.
Challenging the order dated 28-3-2017 as well as the F.I.R., it is submitted by the Counsel for the applicants that in fact they are the victims of misdeeds of their seller. They had purchased the land in dispute only after verifying that the name of the seller is recorded in the revenue record. They are the bonafide purchasers and therefore, their prosecution is bad in law.
Per contra, it is submitted by the Counsel for the respondent no.2 that in fact it is the applicants who are mastermind behind the entire scam. The name of the complainant was recorded in the revenue record on the strength of the sale deed executed by Smt. Urmila Singh, the mother of the accused no.1 to 3. The name of the respondent no.2 was mutated on 31-1-1997 and without giving any opportunity of hearing, the accused no.4 by order dated 27-12-2014, set aside the order of mutation dated 31-1-1997. On 29-12-2014, the 3 M.Cr.C. No.8339/2017 (Balmik Gupta and another Vs. State of M.P. and others) name of the accused no.1 to 3 were recorded in the revenue records and the land was sold to various persons including the applicants on 30-12-2014. The entire things took place within 4 days, which clearly means that the claim made by the Counsel for the applicants that they are the bonafide purchasers is false. The name of Vivek Singh was mutated in the revenue records on 29-12-2014 and the sale deeds were executed on 30-12- 2014, which clearly shows that the applicants are not the bonafide purchasers because the name of Vivek Singh was never recorded in the revenue records, therefore, the contention of the applicants that they had purchased the land after verifying from the revenue record is false.
Heard the learned Counsel for the parties. The moot question for determination is that whether the applicants are the bonafide purchasers or they were also part of conspiracy as claimed by the complainant.
The case of the complainant is that they had purchased the land in dispute from Smt. Urmila Singh, mother of Vivek Singh and accused nos.2 and 3. The sale deed was executed in the year 1993 and the name of the complainant was mutated in the revenue records in the year 1997. Admittedly, no suit has been filed challenging the sale deed executed by Smt. Urmila Singh in favour of the complainant and his brother. An appeal was filed against the order dated 31-1-1997, by which the name of the complainant was mutated in the revenue records, and the said appeal was allowed by order dated 27-12-2014 and according to the complaint, 28-12-2014 was Sunday. The order dated 27-12-2014 was carried out by mutating the name of 4 M.Cr.C. No.8339/2017 (Balmik Gupta and another Vs. State of M.P. and others) accused nos.1 to 3 on 29-12-2014 and the sale deeds were executed on 30-12-2014. Thus, it is clear that the applicants had no time to verify from the revenue records as to whether the name of the accused no. 1 (Vivek Singh) is either recorded in the revenue records or not because prior to 29-12-2014, the name of Vivek Singh was never recorded in the revenue records.
The manner in which the entire transactions have taken place, this Court is of the considered opinion that the Complainant has prima facie made out a case warranting issuance of order under Section 156(3) of Cr.P.C.
This Court does not find any substance in the submission made by the Counsel for the applicants that in fact they themselves are the victims and they are the bonafide purchasers. The manner in which the transactions have taken place and the fact that the name of Vivek Singh and accused nos.2 and 3 were mutated in the revenue records only on 29-12- 2014, therefore, the contention made by the Counsel for the applicants that they had purchased the property only after verifying from the revenue record does not appear to be correct.
The Supreme Court in the case of Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1 has held as under :
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.5 M.Cr.C. No.8339/2017
(Balmik Gupta and another Vs. State of M.P. and others) 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not 6 M.Cr.C. No.8339/2017 (Balmik Gupta and another Vs. State of M.P. and others) exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. 120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
The Supreme Court in the case of Priyanka Shrivastava Vs. State of U.P. reported in (2015) 6 SCC 287 has held as under :
27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order..................
The Magistrate while passing order dated 28-3-2017 under Section 156(3) of Cr.P.C. has applied his mind and therefore, it cannot be said that the order under Section 156(3) of Cr.P.C. has been passed in a mechanical manner without application of mind.
Considering the facts and circumstances of the case, this Court is of the considered opinion that there is sufficient 7 M.Cr.C. No.8339/2017 (Balmik Gupta and another Vs. State of M.P. and others) material available on record to prima facie show commission of cognizable offence. Accordingly, the order dated 28-3-2017 passed by J.M.F.C., Shahdol in an unregistered criminal complaint of 2017 and the F.I.R. in crime No.251 of 2017 registered at Police Station Beohari, Distt. Shahdol, for offence under Sections 420, 467, 468, 471, 217, 218, 219, 120B and 506 of I.P.C. cannot be quashed.
Before parting with this order, this Court feels it appropriate to clarify that the submissions of the Counsel for the applicants have been considered in the light of limited scope of interference under Section 482 of Cr.P.C. The Trial Court is directed to decide the Trial, if occasion arises, strictly in accordance with law, without getting prejudiced by any of the observations made in this order.
Accordingly, this application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun*