Rajasthan High Court - Jaipur
Rajesh Verma vs State Of Rajasthan And Ors on 8 January, 2014
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER Rajesh Verma Vs. State of Raj. & Ors. S. B. Cr. MISC. PETITION NO. 1440/2013. Under Section 482 Cr.P.C. for quashing FIR No. 388/2011 P.S. Ashok Nagar, Jaipur for the offence under Sections 420, 406, 166, 167, 169, 175, 218, 197, 217, 216, 466, 467, 468, 469 and 471 IPC. Date of Order : 08 January, 2014. HON'BLE MRS. JUSTICE NISHA GUPTA Mr Ajay Kumar Jain, for petitioner. Mr Laxman Meena, Public Prosecutor. Mr CL Saini, for respondents. BY THE COURT
REPORTABLE This Misc. Petition under Section 482 Cr.P.C. has been filed for quashing of FIR No. 388/2011 P.S. Ashok Nagar, Jaipur for the offence under Sections 420, 406, 166, 167, 169, 175, 218, 197, 217, 216, 466, 467, 468, 469 and 471 IPC.
2. The short facts of the case as contained in the petition are that petitioner is a RAS Officer and from 4.7.2004 to 2.5.2007, he was posted as Sub Divisional Magistrate- cum- Sub Divisional Officer, Badi Distt. Dholpur and he was exercising jurisdiction under the Rajasthan Tenancy Act and Rajasthan Land Revenue Act. The case titled as Dushyant Singh Vs. State of Rajasthan was pending for correction of revenue record since 1995 with the averments that land was in the name of Maharaja Shri Hemant Singh of Dholpur from Samvat 2019 to 2023. In the Samvat Year 2022-2023, when settlement took place and new Khasra numbers of the land were recorded, the land was by mistake entered as Siwai Chak inspite of the fact that settlement authorities are not having any power to change the type of the land from Khatedari to Siwai Chak. The present petitioner on 24.8.2005 decided the suit in favour of the plaintiff which order was challenged by plaintiff as well as by the State Government and revenue appellate authority vide its order dated 5.7.2006 had affirmed the order of the present petitioner. Thereafter, on 7.12.2011 respondents No. 2 and 3 out of mala fide motives filed a complaint on the ground that disputed land was pasture land and it cannot be converted in the name of the plaintiff and present petitioner has for wrongful gain, passed the impugned order dated 24.8.2005 on which FIR No. 388/2011 has been registered, hence this petition.
3. The contention of the present petitioner is that he was working as Sub Divisional Officer, Badi as Judge and his action is protected under the Judges Protection Act, 1985 (hereinafter referred to as the Act, 1985) and allegations levelled in the complaint do not constitute any offence. The FIR has been lodged for the offence under Sections 420, 406, 166, 167, 169, 175, 218, 197, 217, 216, 466, 467, 468, 469 and 471 IPC but none of the allegations stated in the FIR prima facie disclose ingredients for the above offences, nowhere it has been stated that any forged document has been prepared by the present petitioner or by any other person. No allegation of forgery in Zamabandi or revenue record has been alleged, genuineness of the judgment has been assessed by the revenue appellate authority and it was confirmed, the present petitioner has not misused his position, the FIR is activated with malice, hence be quashed. The revenue appellate authority has passed the order on 5.7.2006 against which no further remedy has been availed by the State Government and till now, nobody has challenged the order even after lapse of more than seven years. Complainant has no locus standi in the matter and only with malafides, the false FIR has been lodged.
Per contra, the contention of respondent Nos. 2 and 3 is that present petitioner was not having any power to order as regards the pasture land, he acted without jurisdiction with conspiracy with other accused persons, court below has ordered investigation under Section 156(3) Cr.P.C. which is an interlocutory order, hence cannot be challenged. Section 77 IPC protects only the acts done under good faith and when present petitioner was not acted in good faith, he could not claim the protection of Act of 1985. His further contention is that they have also applied to book the present petitioner under Section 13 (1) (D) of the Prevention of Corruption Act as he has abused his post as public servant and no case for quashing of the FIR is made out.
4. Heard the learned counsel for the petitioner and learned Public Prosecutor as also counsel for the respondents and perused the impugned order which has been passed by the present petitioner and other documents which has been placed on record by counsel for the parties.
5. The FIR has been lodged only on the ground that present petitioner and other accused has conspired and get the mutation in the name of Dushyant Singh and to facilitate this action, the present petitioner has passed the order dated 24.8.2005 and revenue appellate authority has passed the order dated 5.7.2006. The suit for correction in the revenue entries was pending since 1995, the disputed land was in the Khatedari of Dushyant Singh and it has been alleged in the suit that during settlement proceedings, the nature of the land has been changed and after hearing both the parties and considering the rival contentions, he has passed the judgment dated 24.8.2005. The highest case against him could be that he has passed a wrong order or judgment without jurisdiction but for the same, by no stretch of imagination, it can be said that he has committed any offence and further the State Government never pleaded before any authority that land is pasture land. The contention of the State Government before the revenue officers was that land was entered as Siwai Chak and that too during the pendency of the revenue suit, further the order dated 24.8.2005 has been confirmed by revenue appellate authority vide judgment dated 5.7.2006 and admittedly, against it no appeal has been filed meaning thereby that the order of the present petitioner has get finality.
6. Admittedly, the impugned order has been passed in the year 2005. The present complaint has been filed on 7.12.2011 and present petitioner could not show any personal interest as regards the issue. The contention of the respondents is that offence is cognizable, hence anybody can move the criminal justice system into action this legal proposition cannot be disputed. The conduct of respondents shows malafide per se that without any interest, a baseless FIR has been lodged in the matter, that too after delay of many years.
7. The contention of the present petitioner is that he has acted as a judge and in good faith, hence he is protected under Section 2 of the Act of 1985 and reliance has been placed on Smt. Gyatri Jain P.C.S. Vs. State of Punjab, (2005) 140 PLR 225 wherein it has been held that Section 3 of the Act of 1985 gives protection to every person who is empowered by law to give in any legal proceedings a definitive judgment. Here in the present case, it cannot be disputed that present petitioner was working as a judge in the capacity of Sub Divisional Officer. Further reliance has been placed on S.P. Goel Vs. Collector of Stamps, Delhi, (1996) 1 SCC 573 where it has been held that even Collector (Stamps) is entitled from immunity from legal action contemplated by the act.
Per contra, the respondent has relied upon Ravi Shankar Srivastava Vs. State of Raj., WLC (Raj.) 2005 (2) 612 where the court has held that when the public servant has accepted the gratification, he cannot claim the immunity under the Act. This is not the case here in the present matter. Further reliance has been placed on Shantu Lal Sharma Vs. State of Raj., Cr.L.R. (Raj.) 2005 (2) 1370 where it has been held that protection under Section 2 or 3 of the Act of 1985 is not unbounded and unqualified where the petitioner has acted with corrupt motive and abused his office as public servant, he cannot claim protection. There is no quarrel about this legal proposition but here in the present case, nothing has been alleged in the First Information Report that present petitioner has misused his power as Sub Divisional Officer, he was competent to decide the issue which he has decided.
8. The contention of the respondents is that present petitioner was not competent to decide the issue as regards pasture land and reliance has been placed on Codu Vs. Union of India, RLW 1960 248 where it has been held that suit for perpetual injunction is not covered under Section 91 of the Tenancy Act and only civil court has the jurisdiction to grant injunctions.
Per contra, the counsel for the petitioner has relied upon Poosa Ram Vs. Board of Revenue & ors., 1995 DNJ (Raj) 540 wherein it has been held that revenue courts have power to correct the error crept in during the settlement operations. Here in the present case, during settlement operations, the land was entered as Siwai Chak and the present petitioner was competent to correct the entries and it has been held as under (supra):
The view taken by the revenue appellate authority as well as the Board of Revenue is not correct. The order passed by the Land Record Officer was not without jurisdiction he has powers under Section 136 of the Act, to decide the dispute relating to the correction of the entry, i.e., to correct the errors which crept in the record during the settlement/ survey operation. He acted within his jurisdiction and passed the order correctly. The revenue appellate authority as well as the Board of Revenue have not decided the appeals on merit and dismissed the same merely on technical ground relating to maintainability of the case. The orders passed by the revenue appellate authority, Bikaner (Camp Srigangnagar) as well as by the Board of Revenue, therefore, deserve to be quashed and set aside.
Further reliance has been placed on Pancha Vs. Har Govind, 1962 RLW (Raj.) 76 wherein also it has been held that land declared as pasture land cannot be deemed to be a right conferred by the Rajasthan Tenancy Act and such a suit can therefore be properly entertained by the revenue courts. The respondent himself has relied upon Shantu Lal Sharma (supra) where in Para 11, it has been specifically held that the Assistant Settlement Officer was not empowered to accord Khatedari or gair-khatedari land in respect of Siwai Chak or pasture land and the revenue officers only were competent/ authorized to decide such matters, hence it cannot be said that the present petitioner was not having authority to decide the issue and for the sake of arguments, if it can be assumed that the present petitioner has acted without jurisdiction and passed a wrong order, still it cannot be said that ingredients of any offence has been set out in the First Information Report. Moreover, when the impugned order has been upheld by the higher authority and never objected further. State Government never contended that disputed land is pasture land before the revenue officers.
9. The contention of the present petitioner is that in FIR, there is no allegations of forging the record against any of the accused person. The only allegation is that two judgments have been passed dated 24.8.2005 and 5.7.2006, there is no allegation that anyone has interpolated in the revenue record. During the course of arguments, the counsel for the respondent has submitted that in Zamabandi, by interpolation Shri word has been inserted but no such allegations have been set out in the First Information Report and petitioner has relied upon Sushil Suri Vs. Central Bureau of Investigation & Anr., (2011) 5 SCC 708 wherein it has been held:
Section 482 of the Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely: (i) to give effect to an order under the Cr.P.C.; (ii) to prevent an abuse of the process of Court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Yet, in numerous cases, this Court has laid down certain broad principles which may be borne in mind while exercising jurisdiction under Section 482 of the Cr.P.C. Though it is emphasised that exercise of inherent powers would depend on the facts and circumstances of each case, but, the common thread which runs through all the decisions on the subject is that the Court would be justified in invoking its inherent jurisdiction where the allegations made in the Complaint or Chargesheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged.
Further reliance has been placed on Sathish Mehra Vs. State of N.C.T. Of Delhi & Anr., AIR 2013 SC 506 wherein it has been held as under:
The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.
Further reliance has been placed on Didigam Bikshapathi & Anr. Vs. State of A.P. 2008 Cr.LJ. 724 where it has been held:
Section 482 does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliauid alicui concedit, concedere videtur et id sine guo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court, to allow any action which would result in injustice and prevent promotion of justice, in exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to 'abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.
In Parminder Kaur Vs. State of U.P., AIR 2010 SC 840 it has been held that where the allegation in the First Information Report or complaint taken on its face value and accepted in their entirety do not constitute offence alleged, the inherent powers should be exercised to quash the proceedings.
10. Here in the present case, the offence which has been alleged against the present petitioner is 463 and 464 IPC which reads as under:
463. Forgery.-- Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
464. Making a false document.-- A person is said to make a false document- First.- Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly.- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration.
11. A conjoined reading of the impugned FIR alongwith ingredients of above offences makes it clear that no allegations have been made in the First Information Report that any false document has been prepared or forgery has been committed in any of the revenue records. Similarly, no ingredients of cheating as provided under Section 415 IPC have been disclosed in the complaint that who has cheated to whom and who has taken wrongful gains out of cheating. Further, offence like 166 and 167 IPC has also been narrated in the FIR but no ingredients have been set up that public servant has disobeyed any direction of law or framed any incorrect document or purchased any property has been alleged in the FIR, even it has been stated that offence under Section 175 IPC has been committed by the petitioner as per First Information Report but there is no allegation that any person has disobeyed the order of the public servant to produce any document. Likewise, ingredients as regards offence under Section 217 and 218 IPC have also not been incorporated in the FIR and it cannot be disputed that law is very clear on the point that if FIR or complaint does not disclose allegations of any offence and case taken on its face value do not constitute offence then the inherent powers should be exercised at the threshold or at the advanced stage of the trial to stop abuse of process and to meet the ends of justice. The respondent has relied upon Union of India Vs. Ramesh Gandhi, SCC 2012 (1) 476 where fraud has been played on the court. Here no such allegations have been levelled. Per contra, the contention of the respondents is that present petitioner is conspirator in the matter, hence playing fraud on the petitioner is out of question.
12. The petitioner has also raised objection that the whole incident have alleged to be at Dholpur but malafidely it has been alleged that file travelled to Jaipur to make the jurisdiction at Jaipur which was found to be false as per order passed in DB Cr. Misc. Petition No. 4171/2011 dated 4.9.2012 where the Advocate-General has stated that matter never been dealt with at Secretariate level. The respondents have placed reliance on Rasiklal Dalpatram Thakkar Vs. State of Gujarat & ors., (2010) 1 SCC 1 where it has been held that when the Magistrate has directed investigation under Section 156 (3) Cr.P.C, the Police Officer cannot raise the plea of lack of territorial jurisdiction. There is no quarrel about this legal position but statement asserted by the Advocate-General shows the malafides of the allegations.
Further reliance has been placed by the respondents on C.S. Krishnamurthy Vs. State of Karnataka (2005) 4 SCC 81 where issue of sanction of prosecution under Prevention of Corruption Act was in issue. Here no allegations as regards corruption has been lodged against the present petitioner and learned counsel for the respondents has also submitted that after 19 years, the prosecution was started but the Apex Court was of the view that in the matter of corruption, delay is not material but here in the present case, no such allegations of corruption are levelled in the FIR. Further reliance has been placed on Subramanian Swamy Vs. Manmohan Singh & Anr., (2012) 3 SCC 64 where also issue of corruption was before the Court but the Court has specifically stated that criminal proceedings is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society and in maintaining stability and orderliness in the society. Here in the present case, there is no narration in the First Information Report that any misconduct has been committed. Allegation levelled in the complaint do not constitute any offence and FIR has been lodged after lapse of more than seven years, nothing has been done to quash the impugned order.
In the light of the above, it can safely be concluded that the FIR has been lodged just to harass and reliance has been placed on Ravindra Singh Vs. Sukhdev Singh & ors., JT 2012 (1) SC 515 wherein it has been held:
The hallmark of a vexatious proceeding is that it has no basis in law (or at least no discernible basis); and that whatever the intention of the proceeding may be, its only effect is to subject the other party to inconvenience, harassment and expense, which is so great, that it is disproportionate to any gain likely to accrue to the claimant; and that it involves an abuse of process of the court. Such proceedings are different from those that involve ordinary and proper use of the process of the court.
The case is squarely covered by the law laid down in State of Haryana Vs. Bhajanlal, AIR 1992 SC 604 wherein it has been held that if the FIR or the complaint taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case and when criminal proceedings is manifestly attended with mala fides and instituted with ulterior motive for wrecking vengeance and with a view to fulfill the personal grudge, the Court should exercise power incorporated under Section 482 Cr.P.C.
13. In view of the above, in the present case also FIR/ complaint do not prima facie constitute any offence, no allegation as regards to offence has been narrated in the complaint and it has been instituted with ulterior motive.
Consequently, the petition succeeds and is allowed. The impugned FIR No. 388/2011 registered at P.S. Ashok Nagar, Jaipur for the offence under Sections 420, 406, 166, 167, 169, 175, 218, 197, 217, 216, 466, 467, 468, 469 and 471 IPC is quashed.
(NISHA GUPTA),J.
Gandhi/ 19 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(BRIJ MOHAN) Sr. P.A.