Rajasthan High Court - Jaipur
Manoj Kumar Gupta vs State Of Rajasthan Through P.P on 9 May, 2018
Author: G R Moolchandani
Bench: G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
(1) S.B. Criminal Miscellaneous (Petition) No. 2666/2013
Dharam Pal Singh, son of Shri Bhagwana Ram Ji, aged 49 years,
Village and Post Bharu Via-Nua, District, Jhunjhunu (Raj.)
currently posted as Assistant Secretary, Disaster Management &
Relief Department, Government of Rajasthan, Jaipur (Raj.)
----Petitioner
Versus
The State Of Rajasthan Through P P
----Respondent
Connected With (2) S.B. Criminal Miscellaneous (Petition) No. 1622/2009 Braj Kishore Gupta son of Dharma Nath Prasad Gupta aged about 41 years, R/o 36-37, Ashok Vihar Colony, Jhotwra, Jaipur, Jaipur Rajasthan
----Petitioner Versus State Of Rajasthan Through P.P.
----Respondent (3) S.B. Criminal Miscellaneous (Petition) No. 1693/2009 Manoj Kumar Gupta son of Bihari Lal Gupta, aged about 33 years, R/o E-120, Shastri Nagar, Jaipur (Rajasthan)
----Petitioner Versus State Of Rajasthan Through P.P.
----Respondent For Petitioner(s) : Mr. Swadeep Singh Hora For Respondent(s) : Mr. B.N. Sandu, AAG with Ms. Meenakshi Pareek, PP.
HON'BLE MR. JUSTICE G R MOOLCHANDANI
Judgment reserved on :: 10th April 2018
Judgment pronounced on :: 9th May 2018
Judgment
These are three clubbed S.B. Criminal Misc. Petitions preferred respectively by petitioner/s Dharampal Singh, Brij (2 of 11) [CRLMP-2666/2013] Kishore Gupta and Manoj Kumar Gupta with a prayer to quash FIR No.179/2009 dated 21.07.2009 registered for the offence punishable under Section 13(1)(c)(d)(ii) of the Prevention of Corruption Act read with Sections 420 and 120B of IPC with Police Station Anti Corruption Department, Jaipur Rajasthan.
Petitioner/s have questioned and assailed validity of FIR No.179/2009 with contentions that property in question was a heritage/protected government property notwithstanding accused Dharampal Singh acting contrary to law and to cause harm to the complainant State, being Sub-Registrar, Amer, in collusion with vendors and vendees and others, registered a deed of conveyance on 14.02.2007 vide conveyance deed No.2007064000721. Bhikha Lal, Director of archaeological Department under criminal league with Sub-Registrar Dharampal Singh helped alienate government heritage property through Bhattacharya family favouring M/s Heritage City Construction Private Limited, Sanganer through authorized signatory/vendee Brij Kishore Gupta and Manoj Kumar Gupta.
It evinces from perusal of FIR impugned, 179/2009 dated 21.07.2009 that on the basis of News inserted in Jaipur's Newspaper of January 2008, a "primary enquiry" No.30/2009 was registered in respect of News item, which was carried out by Shri Anil Sharma, Inspector of Police ACD, Jaipur and the Enquiry Officer, after conducting "preliminary enquiry", prima facie found commission of offence punishable under Section 13(1)(c)(d)
(ii) of the Prevention of Corruption Act read with Sections 420 and 120B of IPC and submitted for lodging of FIR to SHO Police Station ACD, Jaipur, as such impugned FIR No.179/2009 came into being (3 of 11) [CRLMP-2666/2013] and it was entered in general diary vide report (रपट) No.587 at 10:00 AM.
Heard submissions of rival sides, learned counsel for the petitioners has argued that the allegations recited in the FIR are false since petitioner Dharam Pal Singh, who registered document in the capacity of Sub-Registrar, Amer, did not violate law because Section 22A of Stamp Act having been declared ultra vires, by Hon'ble Supreme Court by dint of Basant Nahata's case [State of Rajasthan v. Basant Nahata AIR 2005 SC 3401], there was no occasion to enter into quest to ascertain the title of transferers and this being the position, Sub-Registrar was not required to go into the issue of ascertaining actual title of transferer.
Learned counsel while inviting attention of the court towards a non-starred Vidhan Sabha Query No.6456 has contended that similar was the position, which was replied by Government to the House that it was not required by Sub- Registrar, it has further been contended that FIR impugned was hit by Section 162 of CrPC since it has been lodged after an enquiry, which is disclosed by the FIR itself that application of mind was executed and made by an authority to the rank of Superintendent of Police, Anti Corruption Bureau, hence is not sustainable under the eye of law and learned counsel has placed reliance on following authorities :-
(i) P.S. Rajya v. State of Bihar (1996) 9 SCC 1
(ii) T.T. Antony v. State of Kerala And Ors (2001) 6 SCC 181
(iii) State of Rajasthan & Others v. Basant Nahata (supra)
(iv) Suraj Bhan And Ors v. Financial Commissioner And Ors (2007) 6 SCC 186
(v) A. Subair v. State of Kerala (2009) 6 SCC 587
(vi) Mohammed Ibrahim And Ors v. State of Bihar And Anr.
(2009) 8 SCC 751
(4 of 11) [CRLMP-2666/2013]
(vii) Lokesh Kumar Jain v. State of Raj. (2013) 11 SCC 130
(viii) Lalita Kumari v. Government of Uttar Pradesh And Ors (2014) 2 SCC 1
(ix) P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh And Anr.
(2015) 10 SCC 152
(x) Pashupati Das v. Block Land and Land Reforms Officer [W.P.L.R.T. No.130/2010 decided on 9.12.2010 by Division Bench of Calcutta High Court]
(xi) Veer Singh Yadav v. State of Rajasthan [S.B. Cr.MP 2429/2015, decided on 6.1.2016 by Rajasthan High Court]
(xii) Damodar Sharma v. State of Rajasthan & Others [S.B. CWP 7356/2006 decided on 4.1.2018 by Rajasthan High Court] Besides it, main thrust of the argument is that a Departmental Enquiry was also conducted against accused-
petitioner Sub-Registrar Dharampal Singh, and he has already been exonerated by the Enquiry Officer since has not been found guilty of alleged misdeed and on the same set of evidence, criminal proceedings cannot be initiated against the petitioner/s, since it is nothing less than to abuse of process.
It has further been contended that nothing is there to establish that misuse of Office was ever endeavoured or deception was played, no iota of evidence is available on record to show that any alleged demand for gratification was made, so offence under the Prevention of Corruption act and cheating, does not constitute. furthermore, recording of name of State in the revenue record does not confer any right to the State, provisions of the Rajasthan Monuments, Archaeological Sites and Antiquities Act, 1961 does not postulate that property under prescribed zone to remain unalienated but it intends that property is to be kept in protected shape and there being no clog on conveyance. Drawing attention of the court towards several conveyance deeds, copies of which are available on the record, it has been contended that several transfers have already taken place regularly in the said heritage (5 of 11) [CRLMP-2666/2013] and protected property zone but no FIR or any criminal action has ever been launched against those conveyance deeds, even second part of questioned property, which has been conveyed by a separate document on 20.04.2007 by Vikas Bhattacharya to the same vendee M/s Heritage City Construction Private Limited, Sanganer through its another authorized vendee Manoj Kumar Gupta has been left scot-free and no FIR has been lodged even against transfer of subsequent and second part of the similar property, suggesting that petitioner/s have falsely been implicated out of vendetta in exclusion to other similar documents of alienation. Once Government has found no guilt of accused person, while conducting Departmental Enquiry, then how same employee could be held liable for alleged commission or omission of crime, had there been any substance in the allegations, then Sub-Registrar Dharampal Singh would have certainly been held guilty by Departmental Enquiry Officer, in these circumstances, filing of alleged FIR is nothing less than to abuse of process of law and if further proceeded with, shall invariably collapse, hence the FIR impugned deserves to be quashed after allowing the petition/s.
Per contra, learned Additional Advocate General has contended and argued that sufficient material is available on the record against the petitioners and FIR contains serious allegations, so there is no reason to quash the same but learned Public Prosecutor has not controverted and has rather yielded with the factum of exoneration of the petitioner Sub-Registrar Dharam Pal Singh by Enquiry Officer and when queried as to how a negative Enquiry Report was there in exonerating the petitioner, learned (6 of 11) [CRLMP-2666/2013] Additional Advocate General has not been able to satisfy the court with the conclusion thereto and has conceded that Sub-Registrar Dharam Pal Singh has been exonerated by the Enquiry Officer.
Heard submissions of both the sides and gave a considered look to the material available on the record.
It emanates from the contents of FIR that a News item had appeared in Dainik Bhaskar daily in the month of January 2008 in respect of alienation of haveli-property, so to ascertain truth a preliminary quest was made as Preliminary Enquiry No.30/2009, in furtherance, Enquiry Officer made a Preliminary Enquiry after going through the deed of conveyance and after verifying alleged misdeed and fact scenario and prima facie having been satisfied, lodged FIR with Anti Corruption Bureau, Jaipur being FIR No.179/2009.
Supreme Court in Lalita Kumari v. Government of Uttar Pradesh (supra) has held that:-
"However, where information received does not disclose a cognizable offence a preliminary inquiry may be conducted to ascertain whether cognizable offence is disclosed or not - Also, matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay/laches in initiating criminal prosecution are illustrations and not exhaustive of all cases which may warrant preliminary inquiry"
obviously, the Preliminary Enquiry was to be held against deed of conveyance relating to bygone period of more than two years, wherein allegations of malpractices and corruptions were suspected and apprehension thereof appeared in the News item, which is evident from the text of the FIR so, a Preliminary Enquiry was conducted for verification of prima facie (7 of 11) [CRLMP-2666/2013] case, cognizable in nature and same was the intent of said Preliminary Enquiry, thus, contention of learned counsel that investigation was a replica of enquiry and was hit by the provisions of Section 162 of CrPC, bears no force.
It is indisputable that a Departmental Enquiry was conducted against Sub-Registrar Dharampal Singh in respect of alleged illegality, so a Committee was constituted by Divisional Commissioner, Jaipur, and after obtaining explanation of delinquent employee, proceedings were dropped and were later approved vide Noting Nos.222/N, 223/N and 224/N, this aspect has also been reiterated by Inspector, Anti Corruption Bureau, Jaipur Rural, Jaipur, vide its communication/factual report No.457 dated 09.04.2018 that Sub-Registrar Shri Dharampal Singh has been exonerated by Departmental enquiry pertaining to FIR No.179/2009.
Section 22A of Stamp Act has already been declared ultra vires by Apex Court in Basant Nahata's Case (supra) resulting Notification/s relating thereto rescinded, this aspect is also not in dispute, so there was no reason to enter into the quest to ascertain title of vendor and such was the situation, which was reiterated by State while dealing with the Assembly query No.6456.
In State of Rajasthan & Others v. Basant Nahata (supra), Supreme Court has held that Section 22-A of the Registration Act 1908 being subordinate legislation cannot control the transactions which fall out of the scope thereof and has held Section 22-A unconstitutional and consequently the notifications issued thereunder also liable to be quashed.
(8 of 11) [CRLMP-2666/2013] Admittedly no action has been taken or was proposed against Sub-Registrar, who registered second part of conveyance of the same property to the same vendee through Attorney Manoj Kumar Gupta, which was registered on 20.04.2007, whereas FIR impugned has been lodged in respect of first part of conveyance of same property dated 14.02.2007 belatedly with a gross delay of more than two years on 21.07.2009 without any satisfactory explanation.
It also emerges from the record that several conveyance deeds have been made prior and after impugned conveyance, copies of which are available on the record, but no FIR has been lodged against the vendor and vendees of the said sale deeds of same locality having same nature of the properties situated in proximity since no such material is available on the record.
Tax Demand notices have also been issued to various property holders under the provisions of Section 149 Nagar Palika Act 1959 by Executive Officer, Notified Area Committee, Amer and same are issued also in the name of Vikas Bhattyacharya, substantiating factum of property being held in the name of transferer/s. Annexure-G description of buildings situated in buffer zone of Amer Kasba, does also reveal that according to City Survey of 1946-47, private buildings were existing in buffer zone apart from government buildings, temples, mosques and open land and individuals holding possession thereon.
Communications prior to registration of the conveyance deed between Sub-Registrar and Archaeological Department, are also vital since Annexure-C sent by Director, Archaeological (9 of 11) [CRLMP-2666/2013] Department is a letter sent to Sub-Registrar, Amer vide letter No.1285 dated 13.02.2007 informing that questioned haveli was situated within the Controlled Area and the Controlled Area was having government as well as private owned properties and it was opined that on the basis of City Survey of 1946 said property probably was not a government property and further suggested to proceed for the registration accordingly.
Doctrine of law postulates that nobody can transfer a better title and whatever inherent deficiencies or defects are there with the vendor, would invariably pass to vendee, apart from it, recourse to sue for cancellation of unacceptable sale-deed always exists inherently with an aggrieved party.
Lodging of FIR after a lapse of more than two years from the date of registration of the impugned conveyance deed, more so against Sub-Registrar and vendees of first part of the property registered on 14.02.2007 and extending immunity to second part of its transfer to the same vendee and another Sub- Registrar, who verified the deed dated 20.04.2007 and non- registration of any FIR pertaining to the same vicinity properties and conveyance document verifying Sub-Registrar, vendor and vendees, are suggestive that discriminatory modus tantamounting abuse of process has been mooted by the prosecution. Moreso, when accused petitioner Dharampal Singh was exonerated by Departmental enquiry officer, so its nothing less than to gross abuse of process. Vital ingredients of "Deception", "Demand of bribe" or conveyancing property "without consideration", also lacks. It is also an admitted position that the impugned property/ies have also not been acquired by the Government.
(10 of 11) [CRLMP-2666/2013] In A. Subair v. State of Kerala (supra), Apex Court has held that there being no substantive evidence to prove factum of demand, which being essential ingredient for offence under Section 13(1)(d) read with Section 13(2) and Section 7 of the Prevention of Corruption Act - accused liable to be acquitted.
This view has further been reiterated by Apex Court in P. Satyanarayana Murthy's case (supra), This court through a co-ordinate Bench had earlier stayed further investigation in FIR No.179/2009 on 21.08.2009, while hearing S.B. Criminal Misc. Petition No.1622/2009.
The Supreme Court in P.S. Rajya v. State of Bihar (supra) has held that exoneration in departmental proceedings shatters the criminal prosecution and it has been observed:-
"At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings."
Likewise in Lokesh Kumar Jain v. State of Rajasthan (supra), in a case pertaining to exoneration in departmental proceedings, the Supreme Court has quashed the FIR. A co-ordinate Bench of this court in Damodar Sharma v.
State of Rajasthan & Others (supra) has quashed FIR taking view of the exoneration of accused in departmental enquiry.
Upon, evaluating and considering entire material available on the record and to deter continuity of abuse of (11 of 11) [CRLMP-2666/2013] process, it appears just and reasonable to quash FIR No.179/2009 in aforesaid fact scenario.
In the result, FIR No.179/2009 registered with Police Station Anti Corruption Bureau, Jaipur, District Jaipur, for the offences, punishable under Section 13(1)(c)(d)(ii) of the Prevention of Corruption Act read with Sections 420 and 120B of IPC and proceedings in furtherance thereto, are quashed and set aside.
All the three clubbed S.B. Criminal Misc. Petitions are disposed of in aforesaid terms.
(G R MOOLCHANDANI),J db/ashwani/1to3