Punjab-Haryana High Court
Mahinder Singh vs State Of Haryana on 29 January, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL MISC. M NO.28707 OF 2012 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JANUARY 29, 2013
Mahinder Singh
.....Petitioner
VERSUS
State of Haryana
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. K. S. Nalwa, Advocate,
for the petitioner.
Ms. Shruti Jain, AAG, Haryana,
for the State.
Mr. Maharaj Kumar, Advocate,
for the complainant.
*****
RANJIT SINGH, J.
With one stroke of pen, the petitioner and other revenue officers changed the mutation of a land measuring 5539 bighas of land in village Dabkoli Khurd by changing the earlier mutation. This land was in cultivating possession of tenants for over 100 years. Based on the complaint made, FIR No.291, dated 20.12.2005, was registered under Sections 420, 465, 467, 468, 471, 120-B IPC, at Police Station Indri, District Karnal. The petitioner seeks quashing of this FIR and all subsequent proceedings, though the charges against CRIMINAL MISC. M NO.28707 OF 2012 :{ 2 }:
him have also been framed on 28.4.2012 by Judicial Magistrate Ist Class, Karnal.
According to the petitioner, the compelling circumstances for him to make the present approach has arisen on filing of a supplementary report under Section 173(8) of Cr.P.C in which the petitioner has been implicated. This complaint was filed against Sh.Vinod Kumar, Sh.Ashok Kumar sons of Sh.Bishan Sawroop, Bharat Bhushan and Jamshed Ali, residents of Uttar Pradesh. The enquiry in this case has been conducted by the Flying Squad of Chief Minister, Haryana. Jai Pal son of Mamu Ram, Vijay Pal son of Ram Kishan, Bablu son of Kabool Singh, Zile Singh son of Baisakshi Ram, Nathi Ram son of Ram Dia, Rajinder son of Parmail resident of Village Dabkoli Khurd have levelled allegations in their affidavit, alleging that about 150 harijan families have been cultivating the land in this village for about 100 years.
This land belonged to Nawab Mohammad Izaz Ali Khan son of Mohammad Umar Daraj Ali Khan. The ancestors of the complainant have been paying lagan to Nawab. Out of the land in possession of these families, land measuring 3779 bighas was got mutated by Vinod Kapoor and Ashok Kapoor on the basis of a false will. The remaining land measuring 1757.05 bighas has been got mutated by Chander Gupta and Bharat Bhushan. The girdawaries and jamabandies from the beginning were on the name of the complainant. These persons are stated to be land mafia, who have got entered the land in their names through a decree of the Court by fabricating a false will.
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The enquiry in this case was held and finding is that the land mafia with connivance of Patwari to the highest officer in the Revenue Department have committed criminal offence by preparing forged documents. The opinion of District Attorney, CID, Haryana, was obtained, who opined that criminal offences under Sections 420, 465, 467, 468, 471, 120-B IPC were made out. Ruqa was accordingly sent and FIR was, thus, registered.
A perusal of the enquiry report placed on record would show that in the year 1950 in the State of Uttar Pradesh, Uttar Pradesh Jamidari Abolition and Land Reforms Act, 1950 was implemented in terms of the notification issued in 1952. The Government of Uttar Pradesh had made the tenants as `Seerdar', charged rent/lagan and issued receipts. They were, thus, declared as owners. In the year 1969, record was handed over to the Haryana Government but the same was not implemented by the Revenue Department of the Haryana State. The Nawab with his concubine Hafiza Begum came to India and died in the year 1963. His actual successor were his only two sons, namely, Sarfaraz Ali Khan and Maasud Ali Khan, who were then residing in New Karachi. They have also expired. Their birth entries were found recorded in the record of Municipal Committee, Karnal, in the year 1916 and 1919. Their names, however, are not reflected/recorded in the revenue record as well as in the Civil Court. Hafiza Begum, concubine of Nawab, and her son, Jamshed Ali Khan, Khurshid Ali Khan and daughters, Smt.Intyaz Begum, Mumtaj Begum, were not the real children of the Nawab.
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The enquiry has revealed that the jamabandi was prepared for the year 1984-85 and was correct as per the spot. The Commissioner, Rohtak Division, however, annulled this jamabandi in the year 1993 and ordered preparation of fresh jamabandi, as per the record of the jamabandi for the years 1945-46. The present petitioner, Mahinder Singh, was then working as Assistant Consolidation Officer and had entered mutation No.34 dated 15.4.1993 on the basis of the will titled `Nawab Azaaz Ali Khan son of Umar Daraz Ali Khan Vs. Smt.Harfiza Begum, Jamshed Ali Khan, Khurshid Ali Khan and Smt.Imtyaj Begum and Smt.Mumtaj Begum.
The record was seen, which reflected the pedigree table. There was no signatures whereas Parat Patwar and Parat Sarkar mutation No.34 and 35, signatures of Jeet Singh, Lambardar, were available. Mutation No.34 was in the name of concubine of Nawab, namely, Hafiza Begum and her son. The enquiry further revealed that on this document, Jeet Singh, Lambardar, had put his signatures, which were found to be forged. These signatures were got compared and were found to be so forged. Jeet Singh, Lambardar, made statement on 2.5.2006 before Consolidation Officer, Karnal, that he had neither signed this mutation nor he was known to Jamshed Ali Khan or Hafiza Begum etc. The Lambardar further stated that ancestors of harijans and now complainant, harijans, were cultivating the land for the last 100 years. Nawab had never cultivated this land. The mutation No.34 dated 15.4.1993 with respect to the land measuring 5539.05 bighas was entered and sanctioned by Kishori Lal, on the asking of Sh.Mahinder Singh (petitioner) the then Assistant CRIMINAL MISC. M NO.28707 OF 2012 :{ 5 }:
Consolidation Officer, Karnal. This mutation was so done in connivance with Vinod Kumar and Bharat Bhushan. This was found to be wrongly done.
In this mutation, Sh.Piara Singh resident of Village Dabokeli Khurd, who is now resident of Indri, is shown as general attorney. The enquiry has revealed that the Commissioner, Rohtak Division, had cancelled the jamabandi for the year 1945-46, which was in Urdu script and prepared Hindi script. He had also cancelled the order for preparation of fresh jamabandi while making the base of jamabandi for the year 1939-40. Still, jamabandi for the year 1993 has been wrongly implemented. The accused persons, after connivance with the Revenue Department, first got the correct jamabandi for the year 1984-85 cancelled and thereafter got jamabandi for the year 1945-46 cancelled. The orders were passed for preparation of fresh jamabandi and this was aimed to evict the tenants, who were continuously cultivating the land of Nawab Singh for the last 100 years. Sons of Hafiza Begum have procured a Civil Court decree in the year 1992 on the basis of a bogus will whereas the mutation of inheritance was entered in 1993. Vinod Kumar and Bharat Bhushan, in connivance with the sons of concubine of Nawab had got prepared two separate wills in their respective names. In this will prepared in the year 1962, the name `Haryana' has been mentioned while this State was not in existence at that time. The will is signed with a ball point pen whereas during the said period, even ball point pens were not available for being used. The handwriting expert has opined and declared the signatures on will as fake. On the CRIMINAL MISC. M NO.28707 OF 2012 :{ 6 }:
basis of this will executed in the year 1962, the accused persons had filed a case in the Court, which was declined on 3.12.1990 and thereafter, the mutation was entered after three years on 22.5.1993. It is surprising to notice that the name of concubine of Nawab and his son have been entered on 15.4.1993 whereas the Court had given decision on 3.12.1990. Reference can also be made to law where Muslims can not will away his property to a poor Hindu and a christen more than 1/3rd share of his total property and if does so, then he can do only with the consent of his legal heirs. The mutation entered of a land measuring nearly five and a half thousand bighas is accordingly questioned.
Despite these disturbing and uncomfortable facts revealed during the enquiry/investigation, the counsel would still plead that FIR qua the petitioner be quashed. The ground advanced in this regard is the old age of the petitioner and the fact that he has retired from the service since 1994. In a report filed under Section 173(8) Cr.P.C., the allegations have surfaced against the petitioner that he had sanctioned this mutation while he was Assistant Consolidation Officer. The petitioner would rely upon the judgement of the Civil Court dated 3.12.1990, where the defendant statedly had appeared and had admitted the claim of the plaintiffs. This fact would also show how the land grabbers have been able to manage even the Civil Court decree. The petitioner, while sanctioning the mutation of such huge chunk of land, ought to have put himself to caution, especially so when this land belonged to a Nawab, who was not available and had migrated. He was bound to satisfy himself about CRIMINAL MISC. M NO.28707 OF 2012 :{ 7 }:
the position on the ground before blindly acting on the documents, which were presented before him. Little probe on his part would have revealed the fraud and the manipulations, which were done in this case. The mutations, which were in existence from the years after years, was so easily changed without much fuss. The petitioner can not plead ignorance in the background of such facts, which have revealed during enquiry. The plea that investigating agency had sought sanction for prosecuting the petitioner in a detailed note but the sanction was declined to seek quashing of this FIR would again not impress me. The sanction has been declined only on the ground that the petitioner had retired from service and hence, there was no need to obtain sanction or to grant sanction.
The counsel for the petitioner, however, would contest this position and would seek support from the ratio of law laid down in State of Maharashtra Vs. Dr.Budhikota Subbarao, (1993) 3 Supreme Court Cases 339. No doubt, the Court in this case has observed that if offence committed while acting or purporting to act in discharge of official duties, then failure to obtain sanction for prosecution would vitiate the entire proceedings against the accused. The Court has also observed that expression "any person", who is or was a public servant, would entitle this protection to the retired public servant as well. Reference is also made to R.Balakrishna Pillai Vs. State of Kerala and another, (1996) 1 Supreme Court Cases 478 in this regard. In addition, the counsel has also relied upon State of Orissa Vs. Debendra Nath Padhi, (2005) 1 Supreme Court Cases 568, Rukmini Narvekar Vs. Vijaya Satardekar and others, (2008) CRIMINAL MISC. M NO.28707 OF 2012 :{ 8 }:
14 Supreme Court Cases 1 and Anita Malhotra Vs. Apparel Ex port Promotion Council and another, (2012) 1 Supreme Court Cases 520 to urge that it can not be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of charges, though this should be done in a very rare cases, where the defence produced some material, which convincingly demonstrated that whole prosecution case is totally absurd or totally concocted. In Rukmini Narvekar's case (supra), it has held that there is no scope for the accused to produce any evidence in support of submissions made on his behalf at the stage of framing of charges and only such materials, as are indicated in Section 227 Cr.P.C can be taken into consideration by the Magistrate at that stage. It is only in rare cases that the material produced by the defence can be taken into consideration and the Hon'ble Supreme Court has clearly laid down the parameters, when it can be so done. It is in those cases where prosecution case is totally absurd or totally concocted that the Court may exercise such power to consider the material produced by the defence while considering the prayer for quashing the proceedings.
In Debendra Nath Padhi's case (supra), the Court has held that at the stage of framing charge the Court can consider only the material produced by the prosecution and no provision in the Cr.P.C grants right to the accused to file any material or document at the said stage. That right is granted only at the later stage of trial. It is further held that no right is conferred on the accused to produce documents to prove his defence at the stage of framing of charge.
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In Anita Malhotra's case (supra), the Court has made some observations that the defence may be considered at the time of prayer for quashing the proceedings, if the documents relied upon by the defence are beyond suspicion or doubt. That proposition, even if accepted, would not help the cause of the petitioner. No doubt, the Civil Court decree is there but the basis on which the Civil Court decree has come about are not beyond suspicion and the will and the other documents set up in this case by the defence are not free from doubt. Therefore, it will not be appropriate to go into these aspects at this stage. The aspect of sanction has to be considered and pleaded before the trial Court and the trial Court would consider the same in the light of the enunciation of law whether such duties were performed by the petitioner in exercise of his official functions or was motivated, where there may not be need to obtain a sanction. Otherwise also, the petitioner is no more in service and whether he would be entitled to such a protection on the ground of lack of sanction has to be considered by the trial Court. This would not be a ground to quash the proceedings, as prayed for.
I am, therefore, not inclined to interfere in exercise of inherent jurisdiction to quash these proceedings and would dismiss the petition.
January 29, 2013 (RANJIT SINGH ) khurmi JUDGE