Punjab-Haryana High Court
Ramesh Kumar Vohra vs State Of Haryana on 18 January, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
1. CRM No.M-12751 of 2005
Ramesh Kumar Vohra ...Petitioner
Vs.
State of Haryana ...Respondent
2. CRR No.2457 of 2004
Pitamber Parshotam ...Petitioner
Vs.
State of Haryana ...Respondent
3. CRM No.M-26550 of 2005
Daya Rani ...Petitioner
Vs.
State of Haryana ...Respondent
4. CRM No.M-27040 of 2005
Anil Kakria ...Petitioner
Vs.
State of Haryana ...Respondent
Date of Decision:-18.1.2012
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- S/Shri Vikram Chaudhary, P.L.Singla, Rajinder Goyal &
C.B.Goel, Advocates for the petitioners.
Mr.Amit Rana, DAG Haryana for the respondent.
Mr.Sunil Panwar, Advocate for the complainant.
Mehinder Singh Sullar, J.
As identical questions of law and facts are involved, therefore, I propose to decide the indicated petitions arising out of the same impugned orders, by virtue of this common judgment, in order to avoid the repetition. However, the relevant facts and Annexures are mentioned from CRM No.M-12751 of 2005 Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -2- titled as "Ramesh Kumar Vohra Vs. State of Haryana" in subsequent portion of this judgment for ready reference in this context.
2. The epitome of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petitions and emanating from the records (judgment Annexure P20), is that the industrial plot, bearing No.28, situated in Industrial Area Phase-1, Urban Estate, Panchkula, was initially allotted to Ved Parkash Kakria, through the medium of allotment letter dated 8.10.1973 (Annexure P1). He was stated to have sold the same to complainant Suresh Kumar Bajaj son of Avinash Bajaj and received the consideration amount, by way of agreement to sell dated 24.4.1980. The allottee also executed the general power of attorney and Will in his (proposed vendee) favour. Avinash Bajaj, father of the complainant and attorney of original allottee, wrote a letter dated 30.10.1991 (Annexure P9), requesting the Estate Officer (for short "the EO"), Haryana Urban Development Authority (for brevity "the HUDA"), to transfer the plot in the name of the complainant. He again written a letter dated 25.11.1991 (Annexure P10), requesting the EO to transfer the plot in favour of complainant Suresh Kumar Bajaj, enclosing therewith the Will, affidavit and power of attorney. He has also deposited a sum of ` 9200/- on 30.10.1991 in the account of CA, HUDA for transfer of the plot.
3. However, it was claimed by the complainant that petitioners Ramesh Kumar Vohra (EO), Daya Rani (Assistant) & Pitamber Parshotam (Superintendent), after accepting the illegal gratification and with the connivance of their other co-accused, fraudulently removed the documents and Will. Instead of transferring the plot in the name of complainant, they illegally transferred the same in the name of one Anil Kumar Kakria on 17.3.1992. It was alleged that in case, the will was not removed and allowed to remain on the file of transfer, the plot could not have been illegally transferred in the name of Anil Kumar Kakria.
4. Levelling a variety of allegations and narrating the sequence of Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -3- events, in all, the prosecution claimed that all the accused hatched a criminal conspiracy, committed theft, removed the Will etc. from the file of transfer of plot, causing dis-appearance of evidence of offence, misappropriated the amount and cheated complainant Suresh Kumar Bajaj causing undue loss to him. That being the position on record and in the wake of complaint of the complainant, a criminal case was registered against the petitioners-accused, by means of FIR, bearing No.18 dated 2.8.1996 (Annexure P15), on accusation of having committed the offences punishable under sections 201, 381, 409, 120-B and 420 IPC by the police of Police Station Special Vigilance Bureau, Ambala, in the manner described hereinabove.
5. After completion of the investigation and collection of the evidence, the police submitted the final police report/challan in terms of section 173 Cr.PC (Annexure P16) against the petitioners-accused.
6. The civil suit, bearing No.846 dated 10.10.1992 for a decree of declaration filed by the complainant, in respect of the ownership of same plot, was dismissed by the Civil Judge (Senior Division), by virtue of judgment & decree dated 22.1.2005 (Annexure P20). The appeal filed by him was dismissed as well, by Additional District Judge, through the medium of judgment & decree dated 21.10.2005 (Annexure P22). In the wake of dismissal of RSA, bearing No.1522 of 2006, Special Leave to Appeal (Civil), bearing No.15407 of 2006 is pending in the Hon'ble Supreme Court, in which, order of status-quo was passed.
7. Taking cognizance of the offences, the charges for the commission of offences under sections 420 and 409 read with section 120-B IPC were framed against petitioners-accused Ramesh Kumar Vohra, Daya Rani and Anil Kumar. However, accused Pitamber Parshotam was discharged by the trial Court, by way of impugned order/charge sheet dated 15.11.2003 (Annexures P17 & P18).
8. Dissatisfied with the order of framing of charges, petitioners Ramesh Kumar Vohra, Daya Rani and Anil Kakria filed their respective revision petitions, Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -4- whereas the State of Haryana filed its separate revision petition against the order, discharging accused Pitamber Parshotam. The revision petitions filed by the petitioners were dismissed, whereas the revision petition filed by the State was accepted and accused Pitamber Parshotam was ordered to be charge-sheeted alongwith other co-accused as well, by the Additional Sessions Judge, vide common impugned order dated 22.9.2004 (Annexure P19).
9. The petitioners-accused still did not feel satisfied and preferred the present petitions, challenging the impugned orders (Annexures P17 to P19), invoking the provisions of section 482 Cr.PC, leaving this Court in lurch to think, as to what extent, the finding should be recorded with regard to the controversy raised in the instant petitions, as the same would naturally have the direct bearing on the real issues between the parties, to be determined by the trial Court, during the course of trial. Be that as it may, but in the interest of justice, the principle of "safety saves" has to be kept in focus in this relevant behalf, while deciding the present petitions.
10. At the very outset, the learned counsel for petitioners have contended with some amount of vehemence that as no sanction under section 197 Cr.PC was obtained by the prosecution from the competent authority against petitioner Ramesh Kumar Vohra (EO), therefore, no Court can take cognizance against him. The argument further proceeds that once the civil suit, pertaining to genuineness of the disputed Will and ownership of the same plot, filed by the complainant, has already been dismissed by the civil Courts, vide judgments and decrees (Annexures P20 & P22), then, the criminal prosecution cannot continue against the petitioners and impugned orders are liable to be quashed.
11. On the contrary, learned counsel for the State and complainant urged that the subject matter, relating to the proprietary right and title in the plot, was entirely different and has got nothing to do with the crime in question committed by the accused. They submitted that there is ample evidence on record that the Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -5- accused have hatched a criminal conspiracy to deprive the complainant from his right in the plot and after accepting the illegal gratification, removed the Will etc. and fraudulently transferred the industrial plot in question in favour of Anil Kumar Kakria. Therefore, they submitted that since the accused have cheated the complainant and misappropriated the amount, so, the trial Court as well as revisional Court have rightly charge sheeted the accused for the commission of the aforesaid offences and no interference in the impugned orders is warranted.
12. Having heard the learned counsel for the parties at quite some length, having gone through the legal position relatable to the record and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petitions in this context.
13. Ex facie, the argument of learned counsel that since the civil suit filed by the complainant has already been dismissed, so, the criminal prosecution cannot continue against the petitioners, is not only devoid of merit but misplaced as well.
14. As is evident from the record (challan Annexure P16), that the industrial plot in litigation, situated in Industrial Area Phase-1, Urban Estate, Panchkula was allotted to Ved Parkash Kakria, vide allotment letter dated 8.10.1973 (Annexure P1). The complainant claimed that the original allottee had sold the plot to him and received the consideration amount, by means of agreement to sell dated 24.4.1980. The allottee had also executed the general power of attorney and Will in his (proposed vendee) favour. Having purchased the plot, the attorney applied for transfer it in the name of complainant (proposed vendee), by way of letter dated 30.10.1991 (Annexure P9). After depositing the amount of ` 9200/- as transfer fee in the account of CA, HUDA, he had also submitted another letter dated 25.11.1991 (Annexure P10) to transfer the plot in the name of complainant (proposed vendee) and enclosed the Will, affidavit and power of attorney. The Will was intentionally withheld by the officer/officials of HUDA at Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -6- the time of obtaining the legal opinion dated 2.1.1992 (Annexure P11). The matter was investigated and the Vigilance Department collected the evidence, reiterating that Suresh Kumar Bajaj complainant had submitted a copy of Will with the application for transfer of plot, but the officers/officials of HUDA (accused) did not place the same (Will) on the file and removed from the file of transfer of plot. It was claimed that if the Will was brought on the file, then the plot could not have been illegally transferred in the name of Anil Kumar Kakria. During the course of investigation, it has come in evidence that the Will dated 24.4.1980 was scribed before the Sub Registrar in the presence of witnesses. The original allottee had died on 5.2.1985. The affidavit, Will and transfer application submitted by the complainant were entered at Serial No.11124 dated 25.11.1991 in the diary register of HUDA. Laxmi Chand record- keeper placed all the papers before the EO after entering noting at page 36. The prosecution has recorded the statement of Diary Clerk, Om Parkash, who has stated that he handed over all the papers received from the attorney to Laxmi Chand. As per the statement of Laxmi Chand, he handed over the same to Daya Rani, which after entry on the noting file, were to be submitted to the EO through Pitamber Parshotam (Superintendent). None of the officer/officials (accused) recorded on the file at any stage that the Will was not available on the record.
15. Moreover, the civil Court in para 10 of judgment (Annexure P20) has also observed that "then Smt.Veena Rani brought the summoned record to prove the registration of GPA Ex.P2 and Will dated 24.4.1980 Ex.P3. Suresh Kumar Clerk has been examined by the plaintiff as PW3 to prove that the copy of Will Ex.P3, GPA Ex.P2 was received in the office of the defendant no.5 (HUDA) on 8.5.1980 and also stated the letters Ex.P4 to Ex.P14 issued by his office and receipt Ex.P15 in the sum of Rs.9,200/- also pertain to his office. Raj Bhasin, another attesting witness to the agreement to sell Ex.P1, GPA Ex.P2 and Will Ex.P3 in his examination-in-chief endevoured to support the plaintiff. Lastly, on behalf of the Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -7- plaintiff his father and attorney Avinash Bajaj appeared as PW5 and in material respects he supported the plaintiff." These glaring facts clearly point an accusing finger towards and involve the complicity of the accused in the commission of the crime. After completion of investigation, a detailed final police report/challan dated 4.3.1999 (Annexure P16) was prepared and submitted in the Court and the accused have already been charge sheeted for the above indicated offences.
16. In this manner, if the crux of the material as discussed hereinabove, is clubbed together and is perused, then the conclusion is irresistible that two different categories of facts culminated into two different spheres/fields. One part of prosecution version is that having purchased the plot from the original allottee and paid the consideration amount, the attorney applied for its transfer in the name of proposed vendee, vide letters (Annexures P9 & P10), enclosing therewith the copies of the Will, affidavit and general power of attorney. All the accused, after accepting the illegal gratification, were stated to have hatched a criminal conspiracy, committed the theft, removed all the relevant documents from the file of transfer of plot and illegally transferred it in the name of Anil Kumar Kakria. The mere fact that his name (Anil Kumar Kakria) is not mentioned in the FIR, ipso facto, is no ground to discharge him, particularly when there is ample evidence against him that he alongwith his other co-accused hatched a criminal conspiracy and got the plot in litigation transferred in his name. He is the only beneficiary of the entire gamut. The evidence on record prima facie constitutes the grave criminal offences, for which, the accused have already been charge sheeted.
17. Not only that, the 2nd part was as to whether the power of attorney, Will and affidavit executed by the original allottee in favour of proposed vendee were valid and genuine or otherwise or the complainant is owner of disputed plot or not. This part of the story was claimed to have been decided against the complainant by the civil Court, by means of judgment (Annexure P20). Therefore, to me, the 2nd subsequent part of civil dispute decided by the civil Court, may be a Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -8- defence of the petitioners-accused at the time of trial, but, it is altogether entirely a different matter and has got no nexus of co-relation with the criminal offence of cheating and removal of documents from the file of transfer of plot. It cannot possibly be denied that the EO was within his jurisdiction to refuse the transfer on the ground of in-genuineness of the Will and other documents or could direct the complainant to get his title decided by a competent Court.
18. Be that as it may, in any case, he could not have illegally removed, destroyed the Will & other relevant documents and transferred the plot in question in the name of Anil Kumar Kakria. The contention of learned counsel for petitioners that since the civil Court has observed that it is not proved that the Will was produced, is not relevant in the instant case, because that particular issue was never the subject matter of the civil court. Thus, the judgment (Annexure P20) of civil Court, with regard to invalidity of the Will, has got no direct bearing in the present criminal controversy.
19. It is not a matter of dispute that the jurisdiction of civil and criminal Courts is entirely different and distinct from each other. The matter of cheating, misappropriation and removal of documents as in this case, falls within the domain of criminal Court and the decision of civil Court, with regard to the genuineness of the Will, would not debar the prosecution to prosecute the accused in this case.
20. A similar question was decided by the Hon'ble Supreme Court in cases M.S.Sheriff and another v. State of Madras and others 1954 AIR (SC) 397; Kamaladevi Agarwal v. State of West Bengal 2001 AIR (SC) 3846; K.G.Premshanker v. Inspector of Police and Anr. 2002 AIR (SC) 3372; Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. 2005 AIR (SC) 2119 and Smt.Rumi Dhar v. State of West Bengal and another 2009(2) RCR (Criminal)
704. Having interpreted the provisions of sections 300, 482 Cr.PC and sections 40 to 43 of the Evidence Act, it was ruled that "standard of proof required in two proceedings i.e. civil & criminal cases, is entirely different. Civil cases are Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -9- decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other distinct matter, as both the cases have to be decided on the basis of the evidence adduced therein. Each case has to be decided on the basis of its own facts." It was also held that judgment of civil Court is not always a good ground to quash the criminal proceedings and the High Court should be slow in interfering with the proceedings at the initial stage merely on the ground of pendency of the civil suit.
21. As indicated hereinbefore, as the subject matter of criminal prosecution is entirely different than that of the genuineness of the Will and ownership of the plot in the civil suit, therefore, to my mind, no ground for quashing the impugned orders is made out in this relevant connection.
22. Now adverting to the next submission of learned counsel that since no sanction under section 197 Cr.PC was obtained from the competent authority against a public servant, before taking cognizance by the Magistrate, so, the charges against petitioner Ramesh Kumar Vohra, EO cannot legally be sustained, is neither tenable nor the observations of Hon'ble Apex Court in cases R.Balakrishna Pillai v. State of Kerala 1996(2) RCR(Criminal) 765 and P.K.Pradhan v. The State of Sikkim represented by the Central Bureau of Investigation 2001(3) RCR(Criminal) 835 are at all applicable to the facts of this case.
23. As is clear, in R.Balakrishna Pillai's case (supra), the charge against the accused was that he while functioning as Minister for Electricity, Government of Kerala, between May, 1982 and 5.6.85 and his co-accused while functioning as Technical Member/Chairman of the Kerala State Electricity Board, Thiruvananthapuram, between 1.2.84 and 30.11.85, in their capacity as such public servants, entered into a criminal conspiracy to sell electricity to the State of Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -10- Karnataka to be supplied to M/s Graphite India Limited, Bangalore, Karnataka State, without the consent of the Government of Kerala, which was an illegal act as per the provisions of the Electricity (Supply) Act and relevant Rules.
24. Similarly, in P.K.Pradhan's case (supra), a First Information Report was lodged for prosecution of Shri Nar Bahadur Bhandari, the then Chief Minister of Sikkim and the appellant (therein), who was the then Secretary of Rural Development Department, Government of Sikkim, besides certain contractors under Section 120-B of the Indian Penal Code read with Section 5 (old Act) corresponding to Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "the PC Act"). The State Cabinet of Sikkim decided to implement 36 Rural Water Supply Schemes in the State of Sikkim under minimum needs programme and at the time of approving the proposal, the Cabinet specifically decided that the works worth more than Rs.1,00,000/- shall be put to open tender while works below Rs.100,000/- shall be executed through Panchayat nominees. The approval of the State Cabinet was communicated to the Rural Development Department for necessary follow up action for implementation of these schemes. The department issued notice inviting tender for the indicated works from enlisted contractors having resources and experience in such government works. It was alleged that when the matter was thus being processed, Shri Nar Bahadur Bhandari, the then Chief Minister of Sikkim, Shri P.K.Pradhan, the then Secretary, Rural Development Department, Government of Sikkim, entered into a criminal conspiracy with the object of securing contract works in favour of the said contractors by corrupt or illegal means or by otherwise abusing their position as public servants and got the works awarded in favour of contractors aforesaid at low rates thereby causing pecuniary loss to the State.
25. In that sequence, while interpreting the provisions of Section 197 Cr.PC, Sections 13 & 19 of the P.C.Act and on the peculiar facts & in the special circumstances of those cases, it was observed that if there is reasonable connection Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -11- between the act complained of and his official duties, then the prior sanction to prosecute the accused is essential.
26. Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of Ramesh Kumar Vohra EO (petitioner) in the present controversy, as at the same time, it was also ruled that in every offence committed by a public servant, which is not at all relatable to his official duty, no sanction under section 197 Cr.PC is required.
27. As indicated hereinbefore, there are direct allegations against petitioner Ramesh Kumar Vohra EO that after accepting the illegal gratification, he hatched a criminal conspiracy with his co-accused, illegally removed the Will, misappropriated the amount and cheated the complainant in the manner described hereinabove. To me, committing the theft of Will, misappropriating the amount and cheating the complainant cannot possibly be termed to be his act, relatable to and in connection with or in relation to the discharge of his official duty. Therefore, for such illegal act, no sanction under section 197 Cr.PC is necessary, as urged on his behalf.
28. In the same sequence, no implicit reliance can be placed on the letters/notice (Annexures P2 to P8 & P11 to P14), at this stage in exercise of powers under section 482 Cr.PC by this court for want of their legal proof, as urged on behalf of the petitioners. Whether they have been falsely implicated due to enmity, what is the evidentiary value and effect of the indicated letters and whether they have probable defence or not, would be the moot points to be decided, after the appreciation of evidence brought on record by the parties, during the course of trial of the case by the trial Court, as per the law laid down by the Hon'ble Supreme Court in case Dharmatma Singh v. Harminder Singh and others (2011)6 SCC 102.
29. Sequelly, the questions, scope and jurisdiction of this Court for quashing an FIR at the initial stage of the trial under section 482 Cr.PC are not res Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -12- integra. It is well settled proposition of law that in case, on the bare reading, the offences are made therefrom, no order can be made for quashment of criminal prosecution. Such criminal prosecution at the initial stage can be quashed in the rarest of the rare cases, only if it is proved that the same was lodged maliciously or vexatiously in order to wreak vengeance and not otherwise, in view of the law laid down by the Hon'ble Apex Court in a celebrated judgment in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008(2) R.C.R.(Criminal) 92.
30. An identical point came to be decided by the Hon'ble Supreme Court in a recent judgment in case Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R.(Criminal) 183. Having interpreted the scope of section 482 Cr.PC, it was held (para 16) as under:-
"16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself 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 process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."
The Bench mark and requisite ingredients for quashing the criminal prosecution emerging out from the aforesaid judgments are totally lacking in the instant case.
31. There is another aspect of the matter, which can be viewed from a Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -13- different angle. Having completed all the codal formalities, the Magistrate, after considering the entire evidence, charge-sheeted the petitioners-accused, through the medium of impugned orders (Annexures P17 & P18), which were further upheld by the revisional Court, by virtue of impugned common order dated 22.9.2004 (Annexure P19), which, in substance is (paras 9 & 10) as under:-
"9. After hearing both the sides and perusing the lower court file carefully, I am of the considered opinion that the appeal filed by the State against the discharge of Pitamber Parshotam deserves to be allowed and the remaining three revisions deserve to be dismissed. Section 239 of the Cr.P.C. envisages that if, upon considering the police report and the documents sent with it under section 173 Cr.PC and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and recorded his reasons for so doing. Further, as per section 240 of the Cr.P.C., if the Magistrate is of the opinion upon such consideration and examination, if any, that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, he shall frame in writing a charge against the accused. In the present case, admittedly, Shri Ved Parkash Kakaria was the owner of the Industrial Plot in question. According to the complainant, there was a registered general power of attorney dated 24.4.1980 executed by Sh.Ved Parkash Kakaria in favour of Sh.Abnash Bajaj, affidavit and the registered Will dated 24.4.1980 in favour of complainant Suresh Kumar. The further case of the complainant Suresh Kumar Bajaj is that he had given his general power of attorney dated 28.10.1991 in favour of his father Sh.Abnash Chander Bajaj, in respect of dealing with the plot in question. According to the further case of the complaint allegations, an application dated 25.11.1991 was made by Sh.Abnash Chander, being attorney of Suresh Kumar Bajaj complainant, to the Estate Officer, Panchkula with a request to transfer the plot in favour of Sh.Suresh Kumar Bajaj and photocopy of the Will, affidavit and power of attorney were attached therewith. The said application for transfer of the plot was duly received in the office of Estate Officer, HUDA, Panchkula and diarised. There is the statement of Lakmi Chand, record-keeper, in the office of HUDA, under section 161 Cr.PC, whereby, Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -14- he has alleged that on 25.11.1991, Om Parkash, Diary Clerk, had handed over to him application received at diary no.11124 dated 25.11.1991 alongwith which, there were attached copy of the Will, affidavit and power of attorney. He further stated that on the same day, he had handed over the application and the documents to Smt.Daya Rani after making an entry in the noting file. Further, there is the statement of Abnash Bajaj and Suresh Kumar Bajaj under section 161 Cr.PC, whereby, they have stated that the application dated 25.11.1991 was accompanied by the copy of the Will, affidavit and power of attorney. A perusal of the application dated 25.11.1991 available in the case file would also go to show that Sh.Abnash Bajaj while making the said application dated 25.11.1991, attached copy of the Will, affidavit and power of attorney. This all, prima facie, goes to show that the copy of the will was attached by Abnash Bajaj alongwith his application dated 25.11.1991 praying for the transfer of the plot in accordance with the documents attached therewith. Admittedly, at no point of time, the alleged Will, copy of which was prima facie attached with the application for transfer dated 25.11.1991, was taken into consideration by the petitioners herein who dealt with the relevant file of the plot in question. The legal opinion was sought only on the basis of general power of attorney deed. The investigating agency, after investigation of the case, has concluded that copy of the Will was attached with the application for transfer dated 25.11.1991, which was subsequently missing and did not see the light of the day. Smt.Daya Rani, Sh.Pitamber Parshotam and Sh.Ramesh Kumar Vohra dealt with the file being the Assistant, Superintendent and the Estate Officer, HUDA, Panchkula, respectively. According to the version of complainant-Suresh Kumar Bajaj, Abnash Chander and Lakhmi Chand, record-keeper, copy of the Will was attached with the application but the same was missing subsequently. The investigating agency further concluded that the aforesaid three officials in connivance with Sh.Anil Kumar, beneficiary, had removed the copy of the Will from the records of the HUDA. At the stage of framing of charge, the court is not to enter into meticulous consideration of the evidence and the material. It is only to be seen whether the material placed before the Magistrate, if accepted at its face value, would furnish a reasonable basis of foundation for an accusation. In the present case, there is prima facie evidence to the effect that copy of the Will was attached with the application for transfer dated 25.11.1991 but the same was missing from the file. According to the Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -15- learned PP, the very basis of transfer of the plot vide application dated 25.11.1991 was the Will and it was ridiculous not to attach copy of the Will alongwith the application. Once, it is prima facie, found that the three officials of the HUDA removed the copy of the Will, then, they cannot seek protection under section 197 Cr.P.C. because such removal was in no way connected to their official duty. The case of Sh.Pitamber Parshotam cannot be distinguished from that of Daya Rani and Ramesh Kumar Vohra because case of all the three is on the similar footing. Thus, the order of discharge of Pitamber Parshotam is erroneous, illegal and improper.
No other point has been urged before me.
10. For the reasons recorded above, the revisions filed by Smt.Daya Rani, Anil Kumar and Ramesh Kumar Vohra are dismissed. The revision filed by the State against the discharge of Pitamber Parshotam is accepted and the learned trial Magistrate is directed to make further enquiry qua accused Pitamber Parshotam."
32. Meaning thereby, if the nature of accusation of criminal conspiracy, theft, mis-appropriation, material evidence, legal position and totality of the facts and circumstances of the case, as discussed hereinabove, are put together, then, to me, the conclusion is inescapable that there is an ample evidence on record to frame the charges against the petitioners. Therefore, the contrary arguments of their counsel "stricto sensu" are liable to be and are hereby repelled under the present set of circumstances, as the ratio of the law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
33. Above-all, the Courts below, after taking into consideration and appreciating the entire material on record in the right perspective, have correctly framed the charges against the petitioners, by virtue of impugned orders and recorded the cogent grounds in this relevant behalf. Such orders, containing valid reasons, cannot possibly be interfered in exercise of the limited jurisdiction of this Court under section 482 Cr.PC, unless and until, the same are illegal and perverse. Since no such patent illegality or legal infirmity has been pointed out by the Criminal Misc.No.M-12751 of 2005 alongwith 3 connected petitions -16- learned counsel for the petitioners, so, the impugned orders (Annexures P17 to P19) deserve to be and are hereby maintained in the obtaining circumstances of the case.
34. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
35. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the instant petitions are hereby dismissed as such.
36. Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits during the trial of the main case, as the same has been so recorded for a limited purpose of deciding the present petitions in this relevant direction.
18.1.2012 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No