Madhya Pradesh High Court
Mahesh Kumar Badole vs The State Of Madhya Pradesh on 10 July, 2023
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 10th OF JULY, 2023
MISC. CRIMINAL CASE No. 41607 of 2021
BETWEEN:-
MAHESH KUMAR BADOLE S/O SITARAM
BADOLEALE, AGED ABOUT 50 YEARS,
OCCUPATION: SERVICE 4 JANPAD COLONY
(MADHYA PRADESH)
.....APPLICANT
( BY SENIOR ADVOCATE SHRI V.K.JAIN ALONG WITH
SHRI AKSHAT PAHADIA - ADVOCATE )
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THR. P.S. BARWANI (MADHYA
PRADESH)
.....RESPONDENTS
( BY SHRI PRASHANT JAIN GWALIORY GA )
_____________________________________________________________________
This application coming on for admission this day, the court passed
the following:
ORDER
Petitioner has filed present petition under section 482 of Cr.P.C invoking the extra-ordinary jurisdiction of this Court for quashment of First Information Report ( in short "FIR") registered at Crime No.771 / 2020 at Police Station - Badwani for the offences punishable under sections 167, 169, 193, 196, 199, 200, 219, 418, 420, 467, 468, 471, 477-A, 120-B of Indian Penal Code ( in short "IPC") 2/ Brief facts of the case are that the petitioner was posted as Tehsildar and acting as a quasi-judicial body at Badwani in the year 2012 Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 2 to 2014. An application for mutation was filed in the Court of the petitioner, which was allowed vide order dated 25/01/2014 and had wrongly mutated the land in question bearing survey no. 61/8 situated at village-Segoan. Allegedly present petitioner had without following due process, passed the order of mutation, but the order of mutation was not implemented in the revenue record and Batankan proposed by Patwari was wrongly mentioned in the Khasara. Role of present petitioner and the then Patwari Rewaram Gangawal was found to be suspicious. Later on, when the present petitioner was posted as Sub-Divisional Officer at Badwani in the year 2016-2017, he allowed Diversion Case No. 68 /A- / 016-17 and 69/A-2/2016-17 vide order dated 10/04/2017 and the land was diverted for commercial purpose. Then, the petitioner, without following due procedure, without obtaining NOC and without complying with the provision of section 165 of Madhya Pradesh Land Revenue Code (in short " MPLRC"), passed both the orders of diversion. Thereafter, on the basis of aforesaid diversions, the District Judge, Badwani in reference case no. 674/2018, vide order dated 04/08/2020, awarded compensation of Rs.2,53,40,394 in favour of Kalabai in place of earlier amount of Rs. 14,39,593/-. Present petitioner and other revenue officer committed fraud on the basis of forged entries in revenue record with malafide intention and passed the erroneous orders. Accordingly, the aforesaid offence has been registered against the present petitioner and the other co-accused persons.
3/ Learned counsel for the petitioner contended that the petitioner, while functioning as Tehsildar was functioning quasi-judicial body and therefore, he is liable to be protected under section 3 of the Judges Protection Act, 1985. Being a public servant, he cannot be prosecuted without aforesaid sanction under section 197 of Cr.P.C for Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 3 any act done by him, which has been nexus/relation with his official duty. The petitioner has followed valid and due procedure of law while mutating the land in the name of Kamlabai on the basis of registered sale deed. Although the order of the Tehsildar was not implemented by Patwari, but he is not liable for the said lapses and did not commit any illegality. In the proceedings of the diversion matter, he duly called a report of revenue inspector and on the basis of said report, he has proposed maximum penalty under section 172(4) of the MPLRC. He had also recorded the statement of Kalabai and after following due procedure of law within the scheduled period, he has passed the order of diversion of the land to commercial purpose vide order dated 10/04/2017. The land was reserved for commercial purpose as per the Barwani Development Plan and there is no further requirement of land for being diverted for commercial purpose only according to the Badwani Master Plan, therefore, there is no illegality or lapses on the part of the petitioner. He has also sought information from the office of the Town and Country Planning with regard to land use of land of survey no. 61. The District Judge, Badwani allowed the reference petition and award is enhanced to Rs. 2,67,79,987/- vide its award dated 04/08/2020. The finding of the Civil Court is also binding upon the Criminal Court. Hence, he prays that he has not committed any offence and the FIR registered at Crime no. 771/2020 at Police Station - Badwani and all other consequential proceedings arising therefrom be quashed against the petitioner accordingly.
4/ Per-contra, learned counsel for the respondent/State opposed the petition and prays for its rejection by submitting that the petitioner in connivance with other co-accused persons wrongly mutated the disputed land, which could not be legally done as per the relevant Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 4 provisions of MPLRC. The petitioner has deliberately committed wrong, therefore, he cannot be benefited under the provisions of Judges Protection Act, 1985. There is sufficient material to show that the petitioner was involved in the alleged conspiracy and therefore, no need to require prior sanction under section 197 of Cr.P.C, however, it can also be taken at any stage of trial, therefore, present petition deserves to be dismissed.
5/ I have heard learned counsel for both the parties and perused the record with due care.
6/ On perusal of the documents annexed with the present petition and the case dairy, it appears that Parubai, Kamlabai and Kalabai have filed petition under section 178, 109, 110 of MPLRC for mutating their names on the disputed land bearing survey no. 21/11 admeasuring 0.138 hector and survey nos 61/12 and 61/13 admeasuring 0.135 hector on the basis of their mutual family settlement. Kamlabai has purchased the land bearing survey no. 61/8 admeasuring 0.135 hector from Meenabai through registered sale deed dated 31/03/2012. First allegation leveled against the petitioner is that he has illegally mutated the disputed land, but from perusal of the mutation form-24, it appears that the petitioner has mutated the land on the basis of the registered sale deed and Patwari of the Circle ordered to implement the same in the land record, but the order of mutation was not implemented by the concerned Patwari, therefore, the concerned Patwari is responsible for his act and aforesaid lapses and apparently, no illegality appears on the part of the petitioner.
7/ In this respect it is relevant to state that second order dated 22/08/2016 of partition/mutation was not passed by the present petitioner, it was delivered by the then Tehsildar / co-accused Adarsh Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 5 Sharma. Apparently, Kalabai have no title over the said land, but the Tehsildar Adarsh Sharma impleaded the name of Kalabai in influence of his brother / co-accused Babulal Malviya, who was posted as reader at the Tehsildar Court at that time. Despite the fact that Kamlabai was registered owner of the said land, her name was illegally deleted from the revenue record, but the alleged illegal mutation order was passed by Tehsildar Adarsh Sharma, therefore, the petitioner cannot be held liable for the aforesaid illegality committed by other co-accused.
8/ As per the prosecution case, the second allegation leveled against the petitioner is that he has illegally passed the diversion order in respect of the said land without following due procedure of law, but from perusal of the record, it appears that Kamlabai purchased the suit land from Meenabai Ochani through registered sale deed. Meenabai Ochani belongs to Sindhi Community and does not belong to SC& ST Community, therefore, prima-facie, it appears that the suit land cannot be treated as tribal land and apparently it was non-tribal land, therefore, the application of provision of section 165(6) of MPLRC in the instant case is doubtful.
9/ On perusal of the record, it also appears that survey no. 61/12 and 61/13 situated at village-Segaon is falling under the Badwani Development Plan and as per the Plan, the suit land is reserved for commercial purpose and therefore, it appears that present petitioner has duly complied with the rules and regulations according to the Badwani Development Plan. As per section 53 of the MPLRC, diversion case has to be concluded within 30 days from the date of its registration after obtaining information from TNCP and the petitioner has disposed of the case within 27 days, therefore, prima-facie, no illegality has occurred. The petitioner has passed the aforesaid diversion order before issuing Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 6 notification for land acquisition of the land for Indira Sagar Pariyojana, therefore, the petitioner did not violate any notification issued by the State Government.
10/ It is also noteworthy to mention that on the basis of the aforesaid diversion, the District Judge, Badwani in Land Acquisition Case no. 48/2018 ( Kalabai Vs. Land Acquisition Officer and others), vide award dated 04/08/2020, enhanced the award amount to Rs. 2,67,79,987/-. If the M.P. Government is aggrieved with the aforesaid reference, the Government is free to challenge the aforesaid reference before higher authority. As per the provision of sections 50 and 51 of the MPLRC, alternate remedy of review/revision was also available against the aforesaid diversion order, therefore, it appears that these allegation leveled against present petitioner is baseless and without any sufficient evidence.
11/ From perusal of the record, it also appears that in compliance of the order issued by the Collector, Badwani, SDO Revenue, Badwani S.D.M. conducted inquiry and held that the then Tehsildar / co-accused Adarsh Sharma illegally passed the mutation order without having any valid title of Kalabai with collusion of co- accused Babulal Malviya, who was posted as Reader in the Court of Tehsildar. As per his inquiry report, allegation against present petitioner is only that he has not taken diversion application in prescribed format and did not took no objection from other department, but such type of formal lapse of the petitioner may be considered as only irregularity. The petitioner has complied with due procedure and passed the diversion order on the basis of the record available before him, therefore, prima- facie, it is not established that the petitioner has deliberately committed any wrong and involved in the alleged conspiracy with other co-accused.
Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 7Therefore, case of the petitioner is distinguishable on facts and evidence available on record with other co-accused persons.
12/ While arguing the petition, the learned senior counsel for the petitioner significantly raised two other legal grounds, which are,(i) the prosecution failed to obtain prior sanction under Section 197 of the Cr.P.C being the petitioner the public servant and (ii) the petitioner is liable to be protected under Section 3 of the Judges Protection Act 1985.
13/ As far as the first ground relating to the applicability of Section 197 of Cr.P.C is concerned, on careful reading of Section 197 of Cr.P.C., it appears that the intention of lawmakers to incorporate the Section 197 of the Cr.P.C. is to protect public servant from being unnecessarily harassed. The Section is restricted for prosecution of government servant for the act while discharging their official duties. For consideration of the present petition, the Section 197 of the Cr.P.C is being quoted as under :-
"197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction Ins. By Act 1 pf 2014. sec. 58 and Sch., Part IV (w.e.f. 16-01- 2014, vide S.O. 119 (E), dated 16th January, 2014) [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 8 alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Ins. By Act 63 of 1980, sec. 3(b) (w.r.e.f. 23-09-1980) [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.]"
14/ In the case of Prakash Singh Badal Vs. State of Punjab reported in 2007(1) SCC 1 the Hon'ble Apex Court has also held as under:-
"20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity."Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 9
15/ The Hon'ble Apex Court in the Case of Subramanian Swamy Vs. Manmohan Singh and Another reported in (2012) 3 SCC 64 the Hon'ble Apex Court has held as under :-
"74......................Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption."
16/ Upon careful reading of the above cited judgments of the Hon'ble Apex Court it clearly appears that the aim of the Section 197 of the Cr.P.C. is to protect the public servant from being harassed by the criminal prosecution for the act while discharging their official duties. Once any act or omission has been found to be committed while discharging his official duties, it must be given liberal and wide construction so far its official nature is concerned. However, once any deliberate act or omission found to have been committed by any public servant in the discharge of their duties to that extent the scope of Section 197 of Cr.P.C would be narrow and restricted. The deliberate act or omission of the public servant could not be protected under the guise of sanction. The sanction under Section 197 of the Cr.P.C cannot become a seal to protect the corrupt public servant 17/ It is not in dispute that at the time of passing of the impugned order, the petitioner was working as Tehsildar and SDO Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 10 (Revenut). Undoubtedly, the petitioner is public servant and he said to have been committed alleged offence while discharging his official duties. Upon examination the nature of duties under which the offence was committed, It appears that the allegations against the present petitioner is that he committed the forgery in connivance with other co- accused and passed the mutation order and thereafter the petitioner is being prosecuted under Section sections 409, 420, 467, 468, 477-A and 120-B of I.P.C. In various cases viz. Inspector of Police and Another Vs. Battenapatla Venkata Ratnam and Another reported in (2015) 13 SCC 87, Sambhoo Nath Mishra Vs. State of U.P. and others reported in (1997) 5 SCC 326 and Rajib Ranjan and others Vs. R. Vijaykumar reported in (2015) 1 SCC 513 the Hon'ble Apex Court summarized the principle saying that "even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part is not to be treated as an act in discharge of his 11 M.Cr.C. No.58759 of 2022 official duties and, therefore, provisions of Section 197 of the Code will not be attracted. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. The question of grant of sanction can be raised at any stage of the trial."
18/ From reading of the above, it is found that if the allegation against the public servant is for the offence of cheating, fabrication, misappropriation of record and also criminal conspiracy are leveled then there is no need of sanction at earlier stage, it could be taken up at the any stage of trial. The accused who is a public servant can also raise the said ground at any stage of the trial. The correct view would be that if it Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 11 is found that the proceedings are vitiated in the absence of the sanction under Section 197 of Cr.P.C then Court may direct the authority to take sanction and then proceed instead of quashing the entire proceedings. Therefore, in view of the principle laid down by the Hon'ble Apex Court, this Court is of the view that if the prosecution could not get sanction at the stage of enquiry then it does not vitiate the whole proceedings.
19/ As far as plea of protection provided under Section 3 of the Judges Protection Act 1985 is concerned, the learned Senior Counsel for the petitioner submits that being Tehsildar the petitioner is entitled to get the said protection as the wrong said to have been committed while discharging the official duties. The relevant provision is also quoted herein under:
"Section 3 in The Judges (Protection) Act, 1985
3. Additional protection to Judges.--
(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. (2) Nothing in sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge."
20/ The coordinate Bench of this High Court has dealt with the similar issues in Cr.R No. 2017/2016 (S.K.Jamra and other Vs Rajaram and others) order dated 15/03/2019 wherein it has been held Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 12 by the coordinate Bench that the Tehsildar/Naib Tehsildar is entitled to get the protection of Section 3 of Judges Protection Act 1985 while exercising the powers under the M.P. Land Revenue Code including the mutation proceedings. It has been further held by the Court that Tehsildar/Naib Tehsildar cannot be prosecuted for criminal proceedings for passing any order which was passed by them on the report of their subordinate viz R.I/Patwari. The relevant paragraphs are also quoted herein under :-
"As the counsel for the applicant P.S. Rugar took the defence of Section 3 of the Judges Protection Act, therefore, this Court has to decide this issue first. In this regard, in the case of Balram & Anr. Vs. Ashwani Kumar Yadav & Anr. reported in 2001(2) MPHCT 330, this High Court has held that under the MPLRC while Naib Tehsildar was exercising his judicial power for passing the order of mutation he was empowered to give a definite judgment in a legal proceeding and he 13 M.Cr.C. No.58759 of 2022 is entitled to get protection under Section 3 of the Judges Protection Act."
In another judgment passed by this Court in the case of Omprakash Vs. Surjan Singh reported in 2004 RN 31, it was held by this Court that Tehsildar passing any order under the MPLRC Acts as Revenue Court, thereof he is protected under Section 3 of the Judges Protection Act. In the case of S.S. Trivedi Vs. State of M.P reported in 2007 (5) MPHT 138, this Court by reiterating the case of Balram & Ans. (Supra) and has held as under:-
"11. From careful reading of Section 3 of Judges Protection Act as well as the mandates of this High Court, it is clear that Tehsildar/Naib Tehsildar is entitled to get the protection of Section 3 of the Act, 1985 while exercising the power of MPLRC including mutation proceedings. It is also found that the Tehsildar/Naib Tehsildar cannot be prosecuted for Criminal proceedings for passing any order which was passed by him on the report of Sub-ordinate person like R.I./Patwari ................(emphasis supplied) Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 13 21/ It is very much clear that at the time of passing of the concerned order, the petitioner was working as government servant. He has passed the aforesaid order by using authority as government servant. His work was quasi-judicial work. Government of MP vide memo dated 25.3.2021 also clarified the aforesaid provisions of law and directed the Collector of MP to comply with the said order. In such circumstances, protection under section 3 of the Judges Protection Act, 1985 is very well available to him, because the documents annexed with the petition indicates that the petitioner has passed the mutation order upon the report submitted by Patwari and obtaining TNCP information and prima- facie, there is sufficient material on record to establish that due procedure of law has been followed by the petitioner. If some irregularities find in the diversion order, alone does not make the officer responsible who is working as public servant or in the capacity of judicial officer as defined in the Judges Protection Act, 1985 and does not make him liable for any criminal prosecution.
22/ As per the material available on record, it is established that the petitioner was discharging his official duty and was not part of any conspiracy resulting into forgery or any other offence as stated in the FIR. In the case of State of Haryana Vs Bhajanlal reported in 1992 Suppl (1) SCC 335, the Hon'ble Apex Court categorically held that where the allegations made in the FIR or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or the evidence collected in support of the same does not disclose the commission of any offence, the High Court should exercise its inherent power under section 482 of the Cr.P.C to quash the said FIR/Complaint.
23/ In view of the aforesaid discussion, this Court is of the Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42 14 considered opinion that the order passed by the petitioner as government servant and while working as Judge as defined in the Judges Protection Act, 1985 does not make him liable for the criminal prosecution, therefore, no prosecution can be initiated against the petitioner for action or order passed by him as public servant or Judge. The order taking cognizance against him on the complaint made by respondent / complainant does not appear to be legal and valid and it is also found that prima-facie, the petitioner was not indulged in any offence as stated in the FIR or in charge sheet produced before the Trial Court. Therefore the FIR deserves to be quashed.
24/ Accordingly, the present petition is allowed and the FIR bearing No. 771/2020 registered at Police Station-Badwani for the offence punishable under sections 167, 169, 193, 196, 199, 200, 219, 418, 420, 467, 468, 471, 477-A, 120-B of IPC is hereby quashed along with charge sheet produced in pursuant of the said crime number so far it relates to present petitioner.
CC as per rules.
(ANIL VERMA) JUDGE amol Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 12-07-2023 19:10:42