Jharkhand High Court
Naresh Kumar vs State Of Jharkhand Thr.S.P.,Vi on 7 November, 2012
Author: R.R.Prasad
Bench: R.R.Prasad
Criminal Miscellaneous No.1303 of 2009
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In the matter of an application under Section 482 of the Code of
Criminal Procedure.
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Naresh Kumar..........................................Petitioner
VERSUS
State of Jharkhand through S.P, Vigilance, Ranchi...Opposite Party
For the Petitioner :Mr. B.M.Tripathy,Sr. Advocate
For the Vigilance : Mr. Shailesh, Advocate
P R E S E N T
THE HON'BLE MR.JUSTICE R.R.PRASAD
By Court: This application has been filed for quashing of the entire
criminal proceeding of Vigilance P.S. case no.28 of 2000 (Special Case No.15 of 2000) registered under Sections 423, 424, 467, 468, 469, 471, 477A, 409, 120(B) and 109 of the Indian Penal Code and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act against the petitioner and others.
The case of the prosecution as has been made out in the F.I.R against the petitioner is that the land measuring an area 9.34 acres appertaining to plot nos.24, 25, 26, 27 and 28 of khata no.37, situated at Mauza Gari, within the urban area of Ranchi was belonging to Tulsidas Kanodia against whom a proceeding under the Land Ceiling Act was initiated in which proceeding part of the land of plot no. 26 as well as plot nos. 27 and 28 measuring an area 31239.68 sq. meter was declared surplus under Section 10(1) of the Act which was notified on 24.10.1986. Before that Tulsidas Kanodia got 10 kathas land of plot no. 28 sold to Smt. Durga Devi through holder of power of attorney. Smt. Durga Devi, in turn, sold the said land to Smt. Sushila Devi, Smt. Saroj Devi Jhunjhunwala and Smt. Chanda Devi on 9.12.1985.
Likewise Tulsidas Kanodia sold some land of plot no.27 on 2.4.1982 to Smt. Usha Devi Narsaria and Bir Kumar Jain. Thereupon the then Circle Officer, Narayan Murti on the recommendation of the then Circle Inspector mutated the land in their names. In course of time, Smt. Usha Devi Narsaria sold the said land on 19.2.1989 to Sajjan Kumar Agrawal. The said land was mutated in his name by the petitioner being Circle Officer on the recommendation made by the then Circle Inspector.
Further case is that Bir Kumar Jain having purchased the land filed an application for dropping of the proceeding with respect to the land purchased by him but that prayer was rejected. In spite of that, Bir Kumar Jain sold the land on 12.6.1989 to Mahesh Prasad and Kameshwar Prasad which land was also mutated in their names by the petitioner.
It is also the case of the prosecution that the said Tulsidas Kanodia sold some land of plot no.28 to Smt. Kamla Devi Jain on 2.7.1982. In course of time, heirs of Smt. Kammla Devi Jain sold the said land on 7.7.1990 to Dhirendra Kumar Shukla in whose favour land was mutated by this petitioner.
Likewise, Tulsidas Kanodia had also sold some part of the land of plot no.28 on 1.7.1982 to one Om Prakash Bajoria who also filed an application before the Deputy Commissioner for dropping of the proceeding against the land purchased by him but that prayer was rejected. In spite of that, he sold the land on 22.6.1989 to Smt. Devandi Devi in whose favour the land was mutated by this petitioner.
On such allegations, case was registered as Vigilance P.S. case no.28 of 2000 (Special Case No.15 of 2000) under Sections 423, 424, 467, 468, 469, 471, 477A, 409, 120(B) and 109 of the Indian Penal Code and also under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act against the petitioner and others.
After completion of investigation, charge sheet was submitted, upon which cognizance of the offences punishable under Sections 423, 424, 467, 468, 469, 471, 477A, 409, 120(B) and 109 of the Indian Penal Code and also under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act was taken against the petitioner and others, vide order dated 3.1.2011.
Mr.B.M.Tripathy, learned Sr. counsel appearing for the petitioner submitted that since the petitioner being Circle Officer has mutated the name of the transferees against the land sold after 24.10.1986 which is the date on which notification was issued under Section 10(1) of the Act, he is being prosecuted though under the Act no embargo has been put in over the matter relating to mutation of the transferred land and as such, the petitioner is not liable to be prosecuted with criminal action. Moreover, the petitioner did pass order for mutating the name of transferees as the transferors name had already been mutated by his predecessor in office.
In this regard, it was further submitted that none of the offences alleged gets attracted in case of the petitioner, who has been alleged to have mutated the name of the transferees in whose favour land had been transferred before 16.9.1997 on which date declaration was made under Section 10(3) of the Act.
Further it was submitted that in the facts and circumstances none of the offences alleged gets attracted as the petitioner has never been alleged to have committed any act which would be falling within the definition of 'forgery' as has been defined under Section 464 of the Indian Penal Code and as such, question of committing offence by this petitioner under Sections 467, 468, 469, 471 and 477A never arises.
Further it was submitted that accepting the allegation that the petitioner did pass erroneous/illegal order under the teeth of the provision of the said Act but he has never been alleged to have passed an order by adopting corrupt practices or illegal means for having pecuniary advantage/valuable thing for himself or for any other person and thereby the aforesaid essential ingredients being lacking, petitioner cannot be said to have committed offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and under the circumstances, entire criminal proceeding including the order taking cognizance is fit to be quashed.
As against it learned counsel appearing for the Vigilance submits that in spite of proceeding being initiated against Tulsidas Kanodia under the Ceiling Act and the land in question being declared as surplus under Section 10(1) of he Act, said Kanodia sold some lands through the person holding power of attorney and sold some directly still transferees names were mutated by the Circle Officer including the petitioner which he did in conspiracy of each other.
Admittedly, a notification was issued in terms of Section 10(1) of the Act on 24.10.1986. Finally the land was declared surplus under Section 10(3) of the Act on 16.9.1997 before which date transfer of the land in question had been made and the orders of mutations were passed and thereby the petitioner cannot be said to have committed any wrong in passing the orders of mutation.
Going further into the matter, even if it is assumed that the petitioner did pass an order against the statute, question does arise as to whether act done by the petitioner constitute offence of forgery or misappropriation as contemplated under the Indian Penal Code The condition precedent for constituting offence under Sections 467, 468, 471 and 472 is forgery which gets attracted when one makes a false document (or false electronic record or part thereof) in terms of Section 464 of the Indian Penal Code.
An analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories.
4. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
5. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
6. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
Therefore, even if the order passed by the petitioner, as per the prosecution, is erroneous/illegal on account of being against the statute, it does not constitute any offence whatsoever under Sections 467, 468, 469,471 and 477A of the Indian Penal Code as passing of any order even an illegal order never assumes any characteristics of making a false document.
At the same time, there does not appear to be any allegation attracting offence under Section 409 of the Indian Penal Code.
So far the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is concerned, the petitioner though has been alleged to have passed erroneous order being contrary to the provision of the statute but he has never been alleged to have passed the order by adopting corrupt practices or illegal means for having pecuniary advantage/valuable thing for himself or for any other person. The aforesaid essential ingredients constituting offence under Section 13(1)(d) is completely lacking as nothing could be placed to show even an iota of evidence/material of receiving pecuniary advantage and as such, one cannot be prosecuted under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, if one passes wrong order in exercise of power vested in him.
Further it be recorded that though cognizance of the offences has been taken under sections 423 and 424 of the Indian Penal Code but it has never been the case of the prosecution that there was dishonest and fraudulent execution of the deed of transfer containing false statement of consideration. At the same time, it has also not been the case of the prosecution that there was dishonest or fraudulent removal or concealment of property.
Thus, I do find that the instant case falls within category (1) and (3) enunciated in a case of State of Haryana and others vs. Bhajan Lal [1992 Supp (1) SCC 335] where High Court can exercise its power either under Article 226 or under its inherent power under Section 482 of the Code of Criminal Procedure to prevent abuse of the process of any court or otherwise to secure the ends of justice and, therefore, it would be gross abuse of the process of law if the criminal proceeding is allowed to continue and the petitioner is asked to face rigour of trial when the allegations made in first information report even if are taken at their face value and are accepted to be true do not constitute any offence against the petitioner.
Accordingly, entire criminal proceeding of Vigilance P.S. case no.28 of 2000 registered under Sections 423, 467, 468, 469, 471, 477A, 109 read with Section 120(B) of the Indian Penal and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is hereby quashed so far the petitioner is concerned.
In the result, this application is allowed.
(R.R.Prasad, J.) Jharkhand High Court,Ranchi The 7th November,2012 NAFR/N.Dev