Gujarat High Court
Kantibhai Ramjibhai Damor vs State Of Gujarat on 23 July, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 1262 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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KANTIBHAI RAMJIBHAI DAMOR
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR SUNIL S JOSHI(2925) for the Applicant(s) No. 1
MS KRINA P CALLA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/07/2024
ORAL JUDGMENT
1. RULE returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent - State.
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2. By way of this application, the applicant seeks to challenge the legality and validity of the order dated 23.06.2023 passed by the learned Chief Judicial Magistrate, Panchmahal, whereby the learned trial Court Judge rejected the application - Exhibit 34 which was submitted in Criminal Case No.3036 of 2010, praying discharge qua the First Information Report (FIR) registered with Vejalpur Police Station, Taluka Kalol, Panchmahal as C.R. No.I-12 of 2010, filed on 07.02.2010, for the offences punishable under Sections 120B, 465, 467, 468, 471, 406, 420 and 114 of the Indian Penal Code (IPC).
3. The charge-sheet came to be filed to the facts that the father of the first informant, deceased - Jethabhai Khoyabhai, is the uncle of Vankar Dahyabhai Khoyabhai, the aunts - Pashiben and Laliben who are the co-owners of the ancestral land bearing Survey No.116/1 situated at Village Jitpura, District Panchmahal. As per the allegations, the accused No.4, i.e. Abdullah Haji Abdulrehman Batook in collusion with the other accused purchased the said land by Registered Sale Deed dated 25.02.2008.
Page 2 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined The allegations are to the effect that the Sale Deed which came to be executed is forged and also the photographs of Pashiben and Laliben affixed on the Sale Deed and the thumb impression are forged and fabricated. The allegations are of hatching conspiracy to grab the land from the first informant and his maternal aunts at the instance of the main accused. Two women have been impersonated and co-accused posed themselves as Pashiben and Laliben, and thereby, have created false document of Sale Deed.
4. Learned Advocate Mr. Sunil S. Joshi submitted that the present applicant was serving as a Sub-Registrar, Godhra at the time of registration of Sale Deed. It is submitted that the applicant as a Sub-Registrar would have a duty to verify the documents and the identity of the persons, as per the provisions of law and the Rules framed by the State Government and further has to follow the Notifications issued by the Government time to time.
5. It is further submitted that the Exhibit 34 was preferred under Section 239 of the Cr.P.C. to Page 3 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined discharge him from the criminal case since no criminality could be drawn, as the facts on record suggest that the applicant had been discharging his official duties on the date of registration, i.e. 25.02.2008 as per the Registration Act, 1908 (hereinafter referred to in short as 'the Registration Act'). It is further submitted that provisions of the Act are followed and more particularly, the provisions of Section 32A, 34 and 52 were complied with. It is also submitted that the Registrar has to make enquiry as per law but has not to perform as an Investigating Officer.
6. Referring to the Notification dated 08.06.2010 issued by the Stamp and Registration Department, Gandhinagar, it is submitted that the necessity of asking for authenticated proof of identity with photographs of the buyer, seller and attesting witness was given for the very first time through that Notification dated 08.06.2010 while the Sale Deed was registered on 25.02.2008. It is also submitted that the Police was required to seek the approval of, the Government and the concerned Department, prior Page 4 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined to filing of the FIR and ought to have verified the fact whether the Notification of the relevant time and date was followed by the applicant or not.
7. Learned Advocate Mr. Sunil S. Joshi has referred to the Notification of the Revenue Department dated 09.11.2015, which shows that a representation was moved by the Gujarat State Registration Department, falling under the Revenue Department to bring to the notice of the Government regarding registration of the FIR against the Sub-Registrar without any verification of the truth. It is also submitted that this Notification appears to have come into effect because of the oral order of this High Court dated 27.03.2015 passed in Special Civil Application No.9561 of 2014, whereby the concerned Authority was directed to decide the representation.
8. The observations of the Court in the Notification dated 09.11.2015 reads as under :-
"The concerned respondent authority is hereby directed to decide representation dated 22.02.2014 submitted by the petitioner as expeditiously as possible and preferably within a period of six months from the date of receipt of copy of this order in accordance Page 5 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined with law. Representatives of the petitioner union be heard before deciding the representation. It would be open for the petitioner to produce relevant documents including circular with regard to filing an FIR against the revenue officer, after obtaining necessary permission from the competent authority."
9. Placing reliance on the above observations, as well as the referred Notification, learned Advocate for the applicant Mr. Sunil S. Joshi submitted that the illegality which had come to the notice of the concerned Department, has been addressed and was notified to the Revenue Department for a mandate of sanction from the District Level Committee. The said direction is given to the Police to take prior sanction from the District Level Committee to initiate any steps against the Sub-Registrar. The Notification directs that the Committee would have to verify whether the alleged Act is in accordance with the Registration Act, Gujarat Registration Rules, Mumbai Registration Rules and Sangra (Compilation). It is further stated that the Notification dated 09.11.2015 has come up with the Circulars which deals with prior approval of the District Level Committee for any action against the Sub-Registrar.
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10. Referring to the alleged Sale Deed, learned Advocate Mr. Sunil S. Joshi submitted that the ingredients to Section 32 of the Registration Act had been verified and Section 32A was also fulfilled, as passport size photographs were affixed and the finger prints of each buyer and seller were taken on the Sale Deed. Section 34 compliance could be noted of enquiry from Page 33 of the documents where both the parties had affirmed the execution of the documents for satisfaction of identity, as noted under Section 34(3)(b) of the Registration Act. It is further submitted that both the witnesses - Chauhan Manilal Lakhabhai - a Trader and Ismail Chand Chakda - an agriculturist were witnesses to the documents, and though they identified, they had not raised any suspicion against the vendors and both the witnesses had put their signatures on the documents, on whose affirmation the Sub-Registrar has to rely. One of the sellers - Vankar Dahyabhai Kochabhai had presented the Sale Deed of land of village Jitpura, Taluka Godhra who infact, is the original co-owner and co- accused in the matter.
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11. Learned Advocate Mr. Sunil S. Joshi referred to Section 34 of the Registration Act and stated that it specifies that as soon as the person executing the documents appears before the Registrar, within the time allowed for presentation, after following the provisions of Section 34(3) of the Registration Act, the Sub-Registrar on admission is bound to register the document; unless the person who had presented the documents for registration desires the appearance of any person whose presence or testimony is necessary, the Registering Officer may in his discretion call upon such Officer or the Court as the State Government directs, to issue summons to appear at the Registration Office or by duly authorised agent as in the summons may be mentioned at the time mentioned therein. It is further submitted that such exercise would be necessary only when the appearance of executant or witness is desired by the person presenting the document, whereas in this case there was no reason for having doubts, as the Sale Deed was presented by the original owner of the property and was identified by two witnesses. The photographs were affixed of the vendor and purchaser Page 8 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined and thus, it is submitted that there is due compliance of the provision. Further, submitted that the superior officer has not made any remarks of non-compliance; of the provisions of Section 52, where the duties of the Registering Officer has been noted, when the documents came to be presented, thus, submitted that no criminality can be drawn against the applicant and the learned trial Court was required to decide accordingly. It is also submitted that the sanction under Section 197 of the Cr.P.C. was also required when it was absolutely an official duty which was performed and thus, submitted that without any previous sanction under Section 197 of the Cr.P.C., the Court could not take cognizance of the offence.
12. Countering the above arguments, learned Additional Public Prosecutor Ms. Krina P. Calla has relied on the following decisions of the Hon'ble Apex Court :-
(a) State of Uttar Pradesh v. Paras Nath Singh reported in (2009) 6 SCC 372;
(b) Chandan Kumar Basu v. State of Bihar reported in (2014) 13 SCC 70 and Page 9 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined
(c) Punjab State Warehousing Corporation v. Bhushan Chander and Others reported in (2016) 13 SCC 44.
13. Learned Additional Public Prosecutor submitted that prior approval under Section 197 of Cr.P.C. would not be a question, if the offence is under Sections 406, 409 and 420 of Cr.P.C. with other Sections 465, 467, 468 and 471 and 120B of the IPC, where the facts alleged would not be part of duty of public servant or acting in discharge of his official duties. It is further submitted that it would be burden cast on the accused to prove that the alleged act was in discharge of his official duty and thus stated that the applicant is required to face the trial where he would be called upon to prove his defence when during trial can raise the issue of sanction.
14. In Punjab State Warehousing Corporation (supra), in Paragraph 22 it was held as under :-
22. A survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the acts omission or commission is totally alien to the Page 10 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined discharge of the official duty, question of invoking Section 197 Cr.PC does not arise. We have already reproduced few passages from the impugned order from which it is discernible that to arrive at the said conclusion the learned Single Judge has placed reliance on the authority in B. Saha's (supra). The conclusion is based on the assumption that the allegation is that while being a public servant, the alleged criminal breach of trust was committed while he was in public service. Perhaps the learned Judge has kept in his mind some kind of concept relating to dereliction of duty. The issue was basically entrustment and missing of the entrusted items. There is no dispute that the prosecution had to prove the case. But the public servant cannot put forth a plea that he was doing the whole act as a public servant.
Therefore, it is extremely difficult to appreciate the reasoning of the High Court. As is noticeable he has observed that under normal circumstances the offences under Sections 467, 468 and 471 IPC may be of such nature that obtaining of sanction under Section 197 CrPC is not necessary but when the said offences are interlinked with an offence under Section 409 IPC sanction under Section 197 for launching the prosecution for the offence under Section 409 is a condition precedent. The approach and the analysis are absolutely fallacious. We are afraid, though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty. Be it noted the three-Judge Bench in B. Saha (supra) has distinguished in Shreekantiah Page 11 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined Ramayya Munipalli (supra) keeping in view the facts of the case. It had also treated the ratio in Amrik Singh (supra) to be confined to its own peculiar facts. The test to be applied, as has been stated by Chandrasekhara Aiyar, J. in the Constitution Bench in Matajog Dube (supra) which we have reproduced hereinbefore. The three-Judge Bench in B. Saha (supra) applied the test laid down in Gill's case wherein Lord Simonds has reiterated that the test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office."
15. In Chandan Kumar Basu (supra), in Paragraph 9 it was held as under :-
"9. The above discussion will now require the Court to consider the question as to whether the acts giving rise to the alleged offences had been committed by the accused in the actual or purported discharge of his official duties. In a series of pronouncements commencing with K. Satwant Singh vs. State of Punjab reported in 1960 SCR (2) 89; Harihar Prasad vs. State of Bihar reported in (1972) 3 SCC 89 and Prakash Singh Badal & Anr. v. State of Punjab & Ors. reported in (2007) 1 SCC 1, it has been consistently held that it can be no part of the duty of a public servant or acting in the discharge of his official duties to commit any of the offences covered by Section 406, 409, 420 etc. and the official status of the public servant can, at best, only provide an opportunity for commission of the offences. Therefore, no sanction for prosecution of Page 12 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined the public servant for such offences would be required under Section 197 of the Code. Notwithstanding the above, the High Court had granted liberty to the appellant to raise the issue of sanction, if so required, depending on the evidence that may come on record in the course of the trial. Despite the view taken by this Court in the series of pronouncements referred to above, the opportunity that has been provided by the High Court to the benefit of the appellant need not be foreclosed by us inasmuch as in Matajog Dobey vs. H.C. Bhari reported in (1955) 2 SCR 925, P.K. Pradhan vs. State of Sikkim reported in 2001 (6) SCC 704 and Prakash Singh Badal (supra) this Court had consistently held that the question of sanction under Section 197 of the Code can be raised at any time after cognizance had been taken and may have to be determined at different stages of the proceeding/trial. The observations of this Court in this regard may be usefully extracted below.
Matajog Dobey vs. H.C. Bhari (para 21) "The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."Page 13 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024
NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined P.K. Pradhan vs. State of Sikkim (para 15) "It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial."
Prakash Singh Badal & Anr. vs. State of Punjab & Ors. [Para 27] "The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage."
16. In State of Uttar Pradesh (supra), in Paragraphs 10 and 11 it was held as under :-
Page 14 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined "10. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in S.R. Munnipalli v.
Bombay (1955 (1) SCR 1177) and in Amrik Singh v. State Pepsu (1955 RD-SC 9) that it is not every offence committed by a public servant, which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad, etc. v. State of Bihar (1972 (3) SCC
89) as follows:
"As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
11. Above views are reiterated in State of Kerala v. Padmanabhan Nair (1999 (5) SCC 690). Both Amrik Singh (supra) and S.R. Munnipalli (supra) were noted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will etc; forgery for purpose of cheating and using as genuine a forged Page 15 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar."
17. Learned Additional Public Prosecutor Ms. Krina P. Calla further submitted that the applicant as a Sub-Registrar was required to enquire about the identity of the Seller and was duty bound to follow the provision of the Registration Act and it was within his rights to deny the execution if he had found the identity of the person doubtful and thus, stated that there is no prima-facie case made out for discharge. Hence, it is submitted that the application be rejected and the applicant be directed to face the trial.
18. Further, learned Additional Public Prosecutor too submitted that if the Court comes to the conclusion that there is no case against the applicant then right be reserved to the prosecution if at all in future if the State Government or the Authority comes to conclusion to proceed against the applicant with necessary sanction, then it would be open for the Page 16 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined Investigating Officer to produce the sanction on record and thus submitted that the application is premature and liberty should be granted to the Investigating Officer to produce the sanction on record.
18.1. The referred judgments, place importance in finding whether the acts, omission or commission is totally alien to the discharge of the official duty, then the question of invoking Section 197 of Cr.P.C. does not arise. There can be no countenance to such plea that breach of trust was connected to official duty. No sanction is necessary when the object of the conspiracy is to commit the offence of cheating under Section 420 of IPC and/or forgery of documents under Section 467 of IPC and similar non-cognizable or cognizable offence are committed by one or other of the accused for the purpose of effecting the main object of the conspiracy. But when act of public servant become separable, who 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. The Page 17 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined accused can raise the issue of sanction depending on the evidence that may come on record. Such question of sanction under Section 197 of Cr.P.C. can be raised any time and may be determined at different stages of the proceeding / trial. Initially the complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty, but subsequently on enquiry, the necessity of sanction may be established then have to be determined from stage to stage. One of the stage is under Section 239 of Cr.P.C., where the accused would have a chance to prove the necessity of sanction to prosecute him.
19. Perusal of the record of the case shows that the applicant as a Sub-Registrar has registered the Sale Deed on 25.02.2008. The allegations against the applicant is of joining the co-accused and hence of, criminal conspiracy for the execution of the documents. The applicant is admittedly a public servant who is duty bound to follow the provisions of law, alongwith, reading the Notifications and Circulars of the Government of Gujarat. The Page 18 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined allegations in the case are of impersonation of Pashiben and Laliben and that there were false photographs affixed with forged thumb impression and without any verification of the personal identity with the intention to usurp the rights of the complainant and Pashiben and Laliben, the execution of the Sale Deed has been permitted by the Sub- Registrar.
20. The discharge application was made under Section 239 of Cr.P.C. In the decision of the Hon'ble Apex Court in the case of State of Tamil Nadu v. V.R. Soundirarasu reported in (2023) 6 SCC 768, the Hon'ble Apex Court has recognized the difference in the provision of Sections 227 and 228, Sections 239 and 240 and Sections 245(1) and 245(2) dealing with framing of charge or discharge in (i) a Sessions trial,
(ii) a trial of warrant case and (iii) a summons case. The Hon'ble Apex Court has observed in Paragraphs 53, 54 and 55 as under :-
"53. The aforestated Sections indicate that the CrPC contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it, cases instituted upon a police report are covered by Section 239 and cases instituted Page 19 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined otherwise than on a police report are dealt with in Section 245. The three Sections contain somewhat different provisions in regard to discharge of the accused. As per Section 227, the trial judge is required to discharge the accused if "the Judge considers that there is not sufficient ground for proceeding against the accused". The obligation to discharge the accused under Section 239 arises when "the Magistrate considers the charge against the accused to be groundless". The power to discharge under Section 245(1) is exercisable when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted would warrant his conviction".
54. Sections 227 and 239 respectively provide for discharge being made before the recording of evidence and the consideration as to whether the charge has to be framed or not is required to be made on the basis of the record of the case, including the documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the parties to be heard. On the other hand, the stage for discharge under Section 245 is reached only after the evidence referred to in Section 244 has been taken.
55. Despite the slight variation in the provisions with regard to discharge under the three pairs of Sections referred to above, the settled legal position is that the stage of framing of charge under either of these three situations, is a preliminary one and the test of "prima Page 20 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined facie" case has to be applied -- if the trial court is satisfied that a prima facie case is made out, charge has to be framed."
21. The learned Judge was called upon to go by the provision of Section 239 of Cr.P.C. to find out whether there was any "prima-facie" case to frame charge against the applicant. On considering the Police Report and the documents sent under Section 173 and making any such examination, the prosecution and the accused are required to be given an opportunity of hearing. After hearing, if the learned Magistrate considers the charge against the accused as groundless while discharging would record his reasons. A specific observation is also required to be made incase accused is not examined. While making the examination of the documents and reports, the Court can also further make examination of the accused incase where it becomes necessary. Thus Section 239 of Cr.P.C. makes this difference, then what is provided under Section 227 of Cr.P.C., Examination of accused incase of necessity is one more step to be adhered by the learned Magistrate conducting the trial of warrant case while examining whether charge against the accused are groundless.
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22. All the sections under Sections 227, 239 or 245 of Cr.P.C. aims at finding prima-facie case. By the expression in Section 227 of Cr.P.C., "that there is no sufficient ground for proceeding against the accused" and "the Magistrate considers the charge against the accused to be groundless." in Sections 239, while in 245(1) of Cr.P.C. "considers the charge to be groundless" has its own way of dissecting things. Here when the case was before the concerned Magistrate urging that the accused be discharged from the matter, the learned Magistrate could have gone for the examination of the accused, to find out whether the charge against the accused should be framed or to consider the charge against the accused to be groundless. Section 227 does not contemplate examining of accused, to examine the sufficiency of ground for proceeding against accused, while under Section 239, the learned Magistrate has to examine the charge and to decide whether they are groundless and in so doing would also examine the accused, while under Section 245(1), the discharge would follow if no case is made out against accused, that can be done only after taking all the Page 22 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined evidence referred to in Section 244. The Section under 245(2) is wide enough to discharge the accused even at any previous stage of the case for reasons to be recorded if the learned Magistrate considers the charge to be groundless.
23. The accused before the learned Trial Court was the Sub-Registrar. The learned Judge under Section 239 of the Cr.P.C. could have made further enquiry from the accused by examining him. Thus, the accused could have brought to the notice of the Court about the notification of the concerned Department of the Government. The Court would have noted about the duties which the accused was required to follow and thereafter, on such examination could have noticed the case and if necessary, could have directed prosecution for procuring the sanction from the competent authority.
24. Nothing has been brought on record to show that Sections 32, 32A and 34 of the Registration Act have not been complied with. Reasons to deny the execution are noted in Section 35 of Registration Act Page 23 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined whereas in this case, there was no need to refuse registration of the document, as the person who had presented the document has not denied the presentation, nor the person who had executed the documents had objected the presentation, nor the Registering Officer had found any person minor, or idiot or lunatic, nor was it brought to the notice that the person who had purported to execute the documents or representatives or assignees had denied its execution. It would have been a case had the complainant or Pashiben and Laliben had at that time, approached the Sub-Registrar to object the registration. The real brother - Vankar Dahyabhai Koyabhai has never disputed the identity of co- executors as co-owners his sisters. Hence, considering the facts, the Sub-Registrar had no reason to doubt the identity of Pashiben and Laliben.
25. A little enquiry by the learned Magistrate called upon to take cognizance of the matter could have disclosed the facts, and the applicant - Sub- Registrar's examination as accused, could have brought to the notice of the learned trial Court that Page 24 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined the act was in performance of his duties.
26. Section 239 and 227 of the Cr.P.C. which deals with the discharge from the prosecution of the accused are the Sections which gets invoked in the trial before the Court of Sessions and trial of warrant cases before the learned Magistrate, which are instituted on Police Report. A comparison of Section 227 and 239 could be drawn up, to make a note to observe that in a case under Section 227 of Cr.P.C., before any trial of Sessions, the consideration would be with regard to the record of the case and documents submitted therein. However, in Section 239, the consideration would be the Police Report and the documents sent therein under Section 173 and further examination of the accused if the learned Magistrate deems it necessary. The difference thus became obvious under Section 239 of the Cr.P.C. with the exercise of learned Magistrate's power if he thinks it necessary to examine the accused.
27. The express terms can be noted referring to Section 239 of Cr.P.C, which is reproduced herein as Page 25 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined under :-
"Section 239 When accused shall be discharged -
If, upon considering the police report and the documents sent with it under Section 173 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 record his reasons for so doing."
28. Section 239 of Cr.P.C. gives power to the learned Magistrate to presume the materials brought on record by prosecution as true and thus, would evaluate such material to find out whether the facts existing disclose the ingredients of the offence. Here the case against the accused was about the allegations of criminal conspiracy under Sections 120B, 465, 467, 468, 471, 406, 420 and 114 of the IPC. The question of sanction would thus become the primary consideration for the trial Court Judge, who could have examined whether there was any act which could have been considered as offence to have fallen under the ingredients of Sections 120B, 465, 467, 468, 471, 406, 420 and 114 of the IPC, to have been invoked against him.
Page 26 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined 28.1. Before passing an order of discharge under Section 239 of Cr.P.C., the learned Magistrate is required to follow the pre-requisite under Section 239 of Cr.P.C. The learned Magistrate is (i) required to consider all the documents referred under Section 173
(ii) if he thinks necessary, he may examine the accused and (iii) the learned Magistrate has to give the prosecution and the accused an opportunity of being heard.
After complying with the requirement, if he considers the charge to be groundless then shall discharge. A close reading of Section 239 and 240 of Cr.P.C. shows that there must be incriminating material or materials to presume that the accused had committed the offences triable under Chapter IX for framing the charge against the accused otherwise the charge against the accused would be groundless and he would be discharged.
28.2. In the case of Sati Kanta Guha v. State of West Bengal reported in 1977 Cr.L.J. 1644, it was observed by the Division Bench, the provisions under Sections Page 27 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined 239 and 240 of Cr.P.C. gives definite guidelines which the learned Magistrate must observe and comply before arriving at a conclusion to frame the charge or discharge the accused and such decision are not any fittered discretion of the learned Magistrate. The provision demands that the learned Magistrate must consider the police report and documents furnished by the police and if need be to examine the accused, hear the arguments of both the accused and prosecution and then arrive at its conclusion independent of influence by the police. In doing so, the learned Magistrate has to apply his judicial mind to the facts of the case, keeping through out in view, the essential ingredients of the offence for which the accused has sought to be discharged.
29. Section 197 of Cr.P.C. bars the Court from taking any cognizance of the offence against a public servant. The section not only specifies the person to whom the protection has been affected but vis-a-viz the circumstances under which it shall be available. The mandatory care of the protection afforded to the public servant is brought out by the expression 'no Court shall take cognizance of such offence except Page 28 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined with the previous sanction'. The protection under Section 197 is to protect a responsible public servant against the incident of vexatious criminal proceedings for the offences alleged to have been committed by them while they are acting as a public servant. Such protection is available when the alleged act done by the public servant is reasonably connected with the discharge of his official duty.
30. In the case of Rakesh Kumar v. State of Bihar reported in (2006) 1 SCC 557, the Hon'ble Apex Court referred to the decision in the case of P. Arulswami v. State of Madras reported in AIR (1967) SC 776 where it was held therein as under :-
"It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely Page 29 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."
31. Thereafter, the Hon'ble Apex Court referred to the decision in the case of B. Saha and Ors. v. M.S. Kochar reported in (1979) 4 SCC 177 wherein it was held as under :-
"The words `any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, `it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 (1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."Page 30 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024
NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined The following paragraphs of the decision in the case of Rakesh Kumar (supra) is reproduced hereunder :-
"Use of the expression, `official duty' implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by Page 31 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H. C. Bhari, AIR (1956) SC 44 thus :
"The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty ... there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to official to which applicability of Section 197 of the Code cannot be disputed."
Page 32 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined
32. In the case of Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra reported in AIR 1972 SC 545, wherein the Hon'ble Apex Court has stated about the ambit of Section 251(A)(2) of Cr.P.C. which is pari materia with the wordings used in Section 239 of Cr.P.C. which is another provision in Cr.P.C. for discharging the accused as follows :-
It cannot be said that the Court at the stage of framing the charge has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in S. 173 consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.
In para 15, the Supreme Court has stated as:-
" Under sub-sec. (2), if upon consideration of all the documents referred to in S. 173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, Page 33 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined the Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with sub- sec. (3), according to which, if after hearing the arguments and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chap. XXI of the Code within the Magistrate's competence and for which he can punish adequately, he has to frame in writing a charge against the accused. Reading the two subsections together, it clearly means that if there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges." (Emphasis supplied)
33. In the present case, the learned Magistrate was required to note that one of the sellers, is the original owner of the property, while the two other co-sellers who ought to have been his real sisters were impersonated. The applicant as a Registrar was at the most required to make enquiry before registration, but was not required to investigate the identity of the person. He merely has to satisfy himself about the identity of the person appearing before him and the persons who had executed the documents. Here, the brother who is the co-owner Page 34 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined had never raised any objection regarding the identity of two other persons who should have been his original sisters. The Sub-Registrar would have no other mechanism to actually verify the identity of the person. The Notification dated 08.06.2010 was subsequent to the registration of the Sale Deed dated 25.02.2008.
34. The law under Section 32A of the Registration Act is for compulsory affixing of photographs and the finger prints of the document. The Registrar has only to verify as to whether the person who has come before him for the execution of the document is the same as is in the photographs affixed with the finger prints to the documents of the person who would come before the Registrar to execute the documents. The affixing of passport size photographs and finger prints, by the buyer / seller are the statutory identification which becomes necessary with the transfer of immovable property. It was not any case of a person being in jail under any civil or criminal process or the person exempted from law from their personal appearance; nor any case was brought to the Page 35 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined notice of the Registrar that the person was bodily infirm, or was unable or had a serious inconvenience to appear at the Registration Office. The person executing the documents before the Sub-Registrar could only be verified for the identification by comparing the person with the photographs so affixed and further, by the identification of the persons who have been witnesses. Further in this case, one of the co-accused, i.e. the seller is the original co-sharer of the property, which has been transferred by way of ownership.
35. The apprehension could be noted in the Circular dated 09.11.2015 which had come into force on the representation made with the directions of the Co- ordinate Bench of this Court. The Court had very clearly mentioned that the representation of the applicants were to be heard before deciding the Application and it was made open for the applicants to produce relevant documents including the Circular with regard to obtaining necessary permission from the competent authority before filing of FIR. After hearing the representation, the Circular came into Page 36 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined force where incase of any irregularities or conspiracy, which comes to the notice, the police prior to filing any complaint was required to get sanction of the District Level Committee.
36. The impugned order is dated 23.06.2023 of the learned Chief Judicial Magistrate, Godhra at Panchmahal rejecting the application under Section 239 of the Cr.P.C. of the present applicant. The learned Judge could have enquired from the accused in accordance with the provision of Section 239 of Cr.P.C. and could have taken on record the Circular and Notifications of the State Government which could have assisted the Court in deciding the application. The learned Chief Judicial Magistrate has referred to the Notification dated 08.06.2010 and had considered it as that it would be a question of trial and the submission in that regard was considered as question of trial, that opinion of the learned Magistrate would be erroneous since the applicant / accused was pressing before the learned Judge the need to consider the notification to consider the need of prior sanction to take cognizance Page 37 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined of the alleged offence.
37. Notification of the Government also now provides for having a prior sanction from the District Level Committee. The Court on demanding prior sanction from the authority could have verified the facts of the case and after dealing with the Notification and Circulars could have decided about the acts / omissions of the applicant to be covered as irregularity or illegality.
38. Here in this case, what has been submitted and prima-facie proved is that the execution of the Sale Deed was in accordance to the provision of the Registration Act and with the Government Rules and Regulations was in consonance to Notifications / Circulars prevalent at the time of registration of Sale Deed. No criminality can be drawn against the applicant.
39. In the result, the present application succeeds. The order dated 23.06.2023 passed by the learned Chief Judicial Magistrate, Panchmahal in Criminal Case No.3036 of 2010 is quashed and set aside. The Page 38 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024 NEUTRAL CITATION R/CR.RA/1262/2023 JUDGMENT DATED: 23/07/2024 undefined present applicant is discharged from the offences in connection with FIR registered with Vejalpur Police Station, Taluka Kalol, Panchmahal as C.R. No.I-12 of 2010, filed on 07.02.2010, for the offences punishable under Sections 120B, 465, 467, 468, 471, 406, 420 and 114 of the IPC.
40. Rule is made absolute. Direct Service is permitted.
Sd/-
(GITA GOPI, J) CAROLINE Page 39 of 39 Downloaded on : Fri Aug 09 21:23:04 IST 2024