Jharkhand High Court
Jag Narain Singh vs State Of Jharkhand Thr Superin on 7 November, 2012
Author: R. R. Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P.No.788 of 2012
Jag Narain Singh.................................................Petitioner
VERSUS
State of Jharkhand through S.P, Vigilance.....Opposite Party
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr. Sujit Narayan Prasad
For the Vigilance : Mr. Shailesh
15/ 7.11.12. Heard learned counsel appearing for the petitioner and learned counsel appearing for the Vigilance.
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) including the order dated 26.11.2009 whereby and whereunder 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 has been taken against the petitioner and others.
The case of the prosecution as has been made out in the F.I.R is that the land appertaining to plot nos.24, 25, 26, 27 and 28 of khata no.37 measuring an area of 9.34 acres, situated at Mauza Gari within the urban area of Ranchi was recorded n the name of Tulsidas Kanodia against whom when a proceeding under the Ceiling Act was initiated, he filed statement under Section 6 of the Ceiling Act making declaration of the vacant land which he was holding. In spite of that he through holder of power of attorney got 10 kathas of land of plot no.28 sold to Durga Devi Kanodia on 2.7.1982 who Subsequently on 9.12.1985 transferred the said land to Smt. Saroj Devi, Smt. Shashila Devi and Smt.Chanda Devi. When they filed application for mutating their names, this petitioner being Circle Officer, Ranchi, on the basis of the report of the Halka Karamchari passed an order on 16.6.1986 mutating their names against the land transferred in their favour. On such allegation, a case was lodged against this petitioner and others on the premise that after coming into force of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act') with effect from 1.4.1976, any person holding excess land than the ceiling limit was not entitled to transfer the land. In spite of that, the petitioner in connivance with each other passed an order for mutating the land.
On such allegation, a case was registered as Vigilance P.S. case no.28 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.
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 26.11.2009 which is under challenge.
Earlier when the matter was taken up, submissions were made on behalf of the petitioner and also learned counsel appearing for the Vigilance which has been recorded under order dated 3.10.2012 which reads as follows:
" Learned counsel appearing for the petitioner submits that the land falling within the urban area cannot be transferred in between the date of notification issued under Section 10(1) of the Act and the date of declaration to be made under Section 10(4) of the Act and, therefore, if the land would be transferred in between the two dates then only it can be said that the provision of the Act, 1976 has been violated. Here in the instant case, the date of the notification issued under Section 10(1) is 24.10.1986 whereas the land is said to have been transferred on 2.7.1982 and 9.12.1985 which is prior to 24.10.1986 and as such, there is no violation of the provision either of Section 10(1) of the Act or even of Section 5(3) of the Act as the petitioner is never supposed to file statement under Section 6(1) of the Act.
Under the circumstances, the petitioner cannot be said to have done anything wrong under the provision of Urban Land Ceiling Act, still prosecution has been launched against this petitioner.
However, Mr. Shailesh, learned counsel appearing for the Vigilance submits that as soon as provisions of the Urban Land (Ceiling & Regulation) Act, 1976 is enforced, no person holding vacant land within the urban area is supposed to transfer by way of sale, mortgage, gift, lease or otherwise except after giving notice in writing of the intended transfer to the competent authority and thereby, it was within the knowledge of the petitioner being the Circle Officer that the land for which recommendation was made for mutation was falling within the urban area thereby, he was not supposed to make recommendation for mutating the land in favour of the transferee.
As against this, learned counsel appearing for the petitioner submits that whatever act under the said Act is to be done that is to be done by the competent authority. The said Act never cast any duty, responsibility or liability upon the C.O in the matter of transfer of land of urban area and thereby the petitioner cannot be said to have committed any offence.
Upon it, Mr.Shailesh, learned counsel appearing for the Vigilance submits that he needs to have instruction over this matter and, therefore, the matter be posted on 7.11.2012, on which date, he would even file his written arguments.
As prayed for, list this case on 7.11.2012. Till then, further proceeding of Vigilance P.S. case no.28 of 2000, corresponding to Special Case No.15 of 2000, pending in the court of learned Special Judge, Ranchi shall remain stayed.
Let a copy of this order be handed over to the learned counsel appearing for the Vigilance for needful".
Today Mr. Shailesh, learned counsel appearing for the Vigilance submitted that in spite of his best effort, the authority failed to produce any material to show that any duty or responsibility was cast under any circular or instruction to carry out the provision of the Act or that some embargo has been put upon the Circle Officer restricting them from passing order in the matter of mutation.
Mr.S.N.Prasad, learned counsel appearing for the petitioner by reiterating the same plea which had been taken on 3.10.2012 submitted that since under the Act no embargo has been put in over the matter relating to mutation of the transferred land, petitioner is not liable to be proceeded with crimination action.
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 passed order for mutating the name of the transferees on 16.6.1986 as notification was issued under Section 10(1) of the Act much thereafter on 24.10.1986 and the declaration in terms of Section 10(3) of the Act was made on 16.9.1997. Thus, it is evident that before notification was issued under Section 10(1) of the Act the land holders had transferred the lands to the transferees in whose name land was ordered to be mutated and thereby the petitioner did not commit any offence.
Further it was submitted that in the facts and circumstances none of the offences alleged get 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 Section 467, 468, 469, 471 and 477A of the Indian Penal Code 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.
I do find substance in the submission advanced on behalf of the petitioner.
Admittedly, a notification was issued in terms of Section 10(1) of the Act on 24.10.1986 whereas transfer of the land which was effected either in favour of Durga Devi and subsequent transferees was much before that and even the petitioner has passed an order for mutating the name of the transferees against the vended land on 16.6.1986 much prior to 24.10.1986 i.e. the date when notification was issued in terms of Section 10(1) of the said Act and thereby the petitioner cannot be said to have committed any wrong in passing the order dated 16.6.1986.
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.
1. 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.
2. 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.
3. 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 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 offence has been taken also for the offences 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 including the order taking cognizance is hereby quashed so far the petitioner is concerned.
In the result, this application is allowed.
( R. R. Prasad, J.) ND/