Rajasthan High Court - Jodhpur
Ramesh Kumar vs State on 6 September, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 564 / 2012
Smt.Pushpa Devi w/o Shri Manak Lal Jain, aged about 62 years,
b/c Jain, r/o Gopal Ganj, Pratapgarh.
----Petitioner
Versus
The State of Rajasthan
----Respondent
Connected With
S.B. Criminal Misc(Pet.) No. 866 / 2012
Shankar Rathore s/o Shri Hetramji, age 60 years, r/o Gopalganj,
Pratapgarh.
----Petitioner
Versus
State of Rajasthan
----Respondent
S.B. Criminal Misc(Pet.) No. 2079 / 2012
Ramesh Kumar Parihar s/o Kanahiya Lal Parihar, b/c Parihar, r/o
Near Stadium, Gaja Nand Marg, House No.26, Pratapgarh.
----Petitioner
Versus
The State of Rajasthan
----Respondent
S.B. Criminal Misc(Pet.) No. 2275 / 2012
Dinesh Chandra Sharma s/o Shri Surya Shanker Sharma, age 60
years, r/o Sector No.2, H.No.121, Shivaji Nagar, Dungarpur (Raj.).
----Petitioner
Versus
State of Rajasthan
----Respondent
(2 of 47)
[ CRLMP-564/2012]
_____________________________________________________
For Petitioner(s) : Mr.M.S.Singhvi, Senior Advocate assisted by
Mr.Hemant Dutt.
Mr.Rakesh Arora
For Respondent(s) : Mr.V.S.Rajpurohit, PP and Mr.M.S.Panwar PP
for the State.
Mr.Narendra Singh (ACB)-Inspector,
Pratapgarh.
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reserved on 30/08/2017 Pronounced on 06/09/2017 Reportable
1. These criminal misc. petitions under Section 482 Cr.P.C. have been preferred for quashing FIR No.308/2008 dated 16.12.2008 registered at District Anti Corruption Bureau, Chittorgarh Thana, C.P.S. A.C.B., Jaipur / Police Station, Anti Corruption Bureau, Jaipur for the offences under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 read with Section 120B IPC.
2. Brief facts of this case, as noticed by this Court, are that an FIR bearing No.308/2008 was lodged by one Shri Giriraj Joshi, Advocate (since deceased) of Pratapgarh, wherein certain allegations were levelled against the petitioners regarding conversion of an agricultural land situated in Khasra No.457 and 458 of Pratapgarh, in respect of which the applications were moved by one Babu Lal s/o Dalu Ji Dhobi and others under Section 90B of the Rajasthan Land Revenue Act, 1956 (hereinafter (3 of 47) [ CRLMP-564/2012] referred to as 'the Act of 1956'). The allegation was that the Sub Divisional Officer, Pratapgarh vide communication dated 08.08.2003 sought report from the Tehsildar, Pratapgarh, the Executive Officer, Municipal Board, Pratapgarh and Shri Ramesh Kumar Parihar, Draftsman -cum- Surveyor regarding use of the land in the Master Plan. The land use in the Master Plan was apparently residential, and therefore, it was reported that if the land was surrendered, then the Municipal Board had no objection for the purpose of conversion.
3. The Sub Divisional Officer, Pratapgarh accordingly, accepted the surrender of the land of Khatedars Babu Lal and others on 29.02.2004, and thereafter, the procedure under the Act of 1956 was initiated. No-objection Certificate dated 08.01.2004 had already been issued regarding conversion of the land, and after deposition of the regular charges for conversion in accordance with the circular in vogue, the conversion order was passed and pattas were issued to the respective applicants.
4. Out of nine pattas issued by the Municipal Board, six were signed by Dinesh Chandra Sharma, Executive Officer as well as the Chairperson, Smt.Pushpa Devi; and rest of the three were signed by Shankar Rathore, the then Executive Officer and Smt.Pushpa Devi as Chairperson. The circular of the State Government dated 06.07.2002 required the parties to get the requisite development charges deposited by the colonizer in the Municipal Board. Thus, the action of the petitioners resulted into non-deposition of the development charges by the colonizer in the (4 of 47) [ CRLMP-564/2012] Municipal Board, which resulted into a loss of Rs.15.45 lacs to the Municipal Board. All the petitioners are holding respective positions of Chairperson, Executive Officer and Draftsman -cum- Surveyor respectively in the concerned Board and were thus, responsible for all the decisions taken.
5. The investigating agency has relied upon the notification dated 01.01.2002 issued by the State Government, whereby the developer was given an option for depositing the development charges with the local authority, so that patta could be issued and the finance for such properties could be materialized. All the aforementioned nine pattas are subject matter of the FIR.
6. Mr.M.S.Singhvi, learned Senior Counsel assisted by Mr.Hemant Dutt and Mr.Rakesh Arora appearing on behalf of the petitioners submits that continuance of the criminal proceedings is an abuse of the process of law, on the face of the allegations so levelled, as the non-deposition of the development charges by the owners of the land in question before issuance of the patta was not causing any loss to the Municipal Board, as the Municipal Board was not required to carry out any development work and the patta itself carried a mandatory condition that all the development work shall be done at the cost of the patta-holder by his own self.
7. Learned Senior Counsel for the petitioners also stated that the development work had been required to be conducted by the patta-holder by construction of road, laying down of the (5 of 47) [ CRLMP-564/2012] pipelines, bore tube wells, electricity poles etc. Learned Senior Counsel for the petitioners drew the attention of this Court towards the administrative circulars/orders dated 22.12.1999, 30.08.2001 and 20.05.2004, whereby the conversion charges so deposited were bifurcated into development work and the government fund, and thus, a portion of the amount so deposited as conversion charges could be utilized for the development work. However, learned Senior Counsel for the petitioners reiterated that no liability with regard to the development work had fallen upon the Municipal Board, and thus, no case was made out against the petitioners in relation to issuance of the patta.
8. Learned Senior Counsel for the petitioners also stated that the patta-holders were bound by the condition mentioned in the patta so issued, which was to the effect that they shall carry out the development work at their own cost, and thus, the patta- holders were saddled with the liability of carrying out the development work and the Municipal Board thus, did not suffer any loss.
9. Learned Senior Counsel for the petitioners further submitted that the notification dated 01.01.2002 was meant only for Housing Projects and Township by private colonizers, but did not contemplate individual conversions of the plot for residential or commercial purposes. Thus, as per learned Senior Counsel for the petitioners, the land in question was neither a township nor housing scheme/project, and was a mere conversion of the land of private khatedars for residential purposes, as it has been (6 of 47) [ CRLMP-564/2012] submitted that the patta-holder is an individual person, whom the land originally belonged to, and therefore, it was neither a case where apparently there was any township or colonizer involved, nor there was any grant of patta to various persons, which could result into a scheme for residential purposes.
10. The applicability of the circulars dated 01.01.2002 and 06.07.2002, as per learned Senior Counsel for the petitioners, was not mandatory, and the Board, which is an Autonomous Body in fact took the decision in larger interest, which has not been undone by any of the respondents. The pattas issued are in place and have neither been revoked nor any action against the patta- holders has been taken so as to recover the development charges. Thus, virtually the action of issuance of the patta has been accepted by the respondents. Thus, the intention and motive has not been attributed to the petitioners.
11. Learned Senior Counsel for the petitioners has also drawn the attention of this Court towards the complaint, which was lodged for the offences under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act read with Section 120B IPC.
12. The sum and substance of the arguments made by the learned Senior Counsel for the petitioners is that by not realizing the development charges, no actual loss has been caused to the Municipal Board, as such development charges would not be spent by the Municipal Board and in fact, as per the condition of the patta itself, the development work shall be the responsibility of the patta-holders.
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13. Learned Senior Counsel for the petitioners has also strongly refuted that the patta-holders were neither colonizers nor the township developers, who could be saddled with the responsibility of paying Rs.15.45 lacs as development charges. The conversion charges were paid by the party concerned and this was the basic charge that could have been levelled against the patta-holders and as per the circular, a portion of such conversion charges was to be utilized for development work as well. There was no actual loss caused to the Municipal Board, as neither it was conducting any development work, nor it could be saddled with any liability, in light of the condition mentioned in the patta so issued, as in the patta itself a condition has been imposed that the cost of development shall be borne by the patta-holders themselves.
14. Learned Senior Counsel for the petitioners, thus submitted that even if it is assumed that there was some irregularity in the decision taken, then also there was no illegality on the part of the petitioners, and thus, there is no question of any criminal liability arising against the petitioners. Even if there was an error of judgment on the part of the petitioners, then also the same could not attract the rigors of a criminal proceeding.
15. Learned Senior Counsel for the petitioners also argued that on a bare reading of Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and Section 120B IPC, no offence is made out, as there is no direct attribution upon the present (8 of 47) [ CRLMP-564/2012] petitioners, which could bring them within the ambit of the Prevention of Corruption Act or the Indian Penal Code.
16. For ready reference, Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and Section 120B IPC are reproduced hereinbelow:-
"13. Criminal misconduct by a public servant.-
(1) A public servant is said to commit the offence of criminal misconduct,-
(a) . . . . .... ....
(b) . . . ... ...
(c) . . . ... ...
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without public interest; or .... .... . . . ."
"(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.
Section 120B of the Indian Penal Code:
120B. Punishment of criminal conspiracy.--
(9 of 47) [ CRLMP-564/2012] (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
17. Learned Senior Counsel for the petitioners also stated that the sanction against petitioner-Ramesh Kumar Parihar, Draftsman -cum- Surveyor, who is said to have granted the No- objection Certificate dated 08.01.2004 in relation to the current patta, has been declined by the concerned authority. The person, who surrendered the land and took the patta was Babu Lal, who is an individual khatedar and was neither a colonizer nor a township developer.
18. In support of his submissions, learned Senior Counsel for the petitioners has placed reliance on the precedent law laid down by the Hon'ble Apex Court in R.Balakrishna Pillai Vs. State of Kerala, reported in (2003) 9 SCC 700, relevant paras 43 to 46 of which read as under:-
"43. To consider yet another aspect, the general principle of criminal jurisprudence is that element of mens rea and intention must accompany the culpable (10 of 47) [ CRLMP-564/2012] act or conduct of the accused. In respect of this mental element generally, the Blackstone's Criminal Practice describes it as under:
"In addition to providing that the accused satisfied the definition of the actus reus of the particular crime charged, the prosecution must also prove mens rea, i.e., that the accused had the necessary mental state or degree of fault at the relevant time. Lord Hailsham of St. Marylebone said in Director of Public Prosecutions v. Morgan [1976] AC 182 : 'The beginning of wisdom in all the "means rea" cases ... is as was pointed out by Stephen J in Tolson (1889) 23 QBD 168, that 'mens rea' means a number of quite different things in relation to different crimes'. Thus one must turn to the definition of particular crimes to ascertain the precise mens rea required for specific offences."
The author then comments:
"Criminal offences vary in that some may require intention as the mens rea, some require only recklessness or some other state of mind and some are even satisfied by negligence. The variety in fact goes considerably further than this in that not only do different offences make use of different types of mental element, but also they utilise those elements in different ways."
It is clear thus that the accused must have the mental state or degree of fault at the relevant time. It may of course differ from crime to crime according to the definition thereof. The matter of degrees may also differ. That is to say generally the mental state and the criminal act must coincide. The criminal act may be one which may be intended by the wrong doer. It is (11 of 47) [ CRLMP-564/2012] as well known mere intention is not punishable except when it is accompanied by an act or conduct of commission or omission one the part of the accused. As indicated earlier, situation varies in respect of different kinds of crimes as in some of them even negligence or careless act may constitute an offence or there may be cases of presumptions and putting the accused to proof to the contrary. In the case in hand we have found that there is no sale of energy to M/s. GIL by KSEB nor the appellants had any say in price fixation for M/s. GIL by KEB. In this light we may pass on to Criminal Law - J.C. Smith, Brian Hogan, where proposition of law is put as follows:
"It is a general principle of criminal law that a person may be convicted of a crime unless the prosecution have proved beyond reasonable doubt both (a) that he caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law, and (b) that he had a defined state of mind in relation to the causing of the event or the existence of the state of affairs. The event or state of affairs, is called the actus reus and the state of mind the mens rea of the crime."
44. We further find the said principle of criminal jurisprudence stated in Criminal Law by K.D. Gaur, wherein it is stated as follows:
"Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the (12 of 47) [ CRLMP-564/2012] conduct was accompanied by a legally blameworthy attitude of mind. thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively."
45. Glanville Williams in Criminal Law has also stated as follows in connection with the intention accompanying the act :
"The chief problems in the general part of criminal law pertain to the requirement of a criminal state of mind, mens rea; but these cannot be adequately discussed without a preliminary exploration of the nature of an actus reus."
It is further stated:
"Although thoughts are free, the uttering of them is another matter. Speaking or writing is an act, and is capable of being treason, sedition, conspiracy or incitement; indeed, almost any crime can be committed by mere words, for it may be committed by the accused ordering an innocent agent (e.g., a child under eight) to do the act. But to constitute a criminal act there must be (as said already) something more than a mere mental resolution. Apparent, but not real, exceptions to this proposition are treason and conspiracy. It is treason to compass the King's death, but the law requires an overt act manifesting the intention; and this act must be something more than a confession of the intention. It must be an act intended to further the intention; perhaps, too, it must actually do so..."
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46. Thus, looking to the definition of the crime in the case in hand namely, Clause (d) of Sub-section (1) of Section 5 of the Act, according to the principle indicated above it is necessary that the Act must have been done illegally abusing his position as public servant for obtaining benefit pecuniary or otherwise for himself or for someone else. This is an offence which would require an intention to accompany the act. The element of mental state would be necessary to do a conscious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else, then too element of mental state must be there at the relevant time. In view of the facts and circumstances indicated in the discussion held earlier in this judgment, and findings recorded on facts, we firstly hold that facts leading to charges are not proved and we also find that the element of mens rea and intention is totally lacking. The electrical energy was exported to Karnataka/KEB at the request of State of Karnataka during the period of crisis of shortage of energy which is not objected to, so as to be illegal but for a part of it which is allocated by the State of Karnataka/KEB to M/s. GIL which constitutes no offence. The prosecution failed to prove the case of sale of electricity by KSEB to M/s. GIL or the KSEB or A1 and A2 having caused profit to M/s. GIL. Admittedly, appellants did not stand to gain in any manner. The prosecution case thus fails.
19. Learned Senior Counsel for the petitioners has also placed reliance on the precedent law laid down by the Hon'ble Apex Court in Tarlochan Dev Sharma Vs. State of Punjab & Ors., reported in (2001) 6 SCC 260, relevant para 11 of which reads as under:-
(14 of 47) [ CRLMP-564/2012] "11. The expression 'abuse of powers' in the contest and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate at implies a wilful abuse or in intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuses of power. It must be such an abuse of power which would render a Councillor unworthy of holding the office of President. In as much as an abuse of power would entail adverse civil consequences, the expression has to be narrowly construed. Yet again, the expression employed in Section 22 is 'abuse of his powers of habitual failure to perform in duties'. The use of plural - powers, and the setting of the expression in the framing of Section 22 is not without significance. It is suggestive of legislative intent. The phrase 'abuse of powers' must take color from the next following expression - 'or habitual failure to perform duties'. A singular or causal aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving, dishonesty of intention is 'abuse of powers' within the meaning of Section 22 of the Act. The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision."
20. Learned Senior Counsel for the petitioners has further placed reliance on the precedent law laid down by the Hon'ble Apex Court in State of Madhya Pradesh Vs. Sheetla Sahai & (15 of 47) [ CRLMP-564/2012] Ors., reported in (2009) 8 SC 617, relevant paras 20, 21, 27, 34, 35 and 47 of which read as under:-
"20. Respondent 1 approved the said note of Respondent 2 on or about 20.01.1992 whereupon the amount in question was sanctioned. Thereafter, the accounts were audited and one Shri G.K. Shukla, Deputy Accountant General reported:
"a) The clause of the agreement noted above and the quarry chart clearly bring out that in the event of change of quarry on whatever reasons no claim will be entertained and contractor should before quoting rates, visit the quarry site and satisfy himself regarding quantity and quality of the material available. Thus, the sanction appears a negotiated settlement beyond the contractual provisions, for which concurrence of Finance Department ought to have been obtained.
b) The PRC considered this as a claim case which was to be decided by Arbitrator under M.P. Adhikaran Adhiniyam, 1983.
c) The Member, World Bank suggested to resolve the matter within the contractual limits.
d) The Secretary Irrigation had earlier rejected the case as it was not admissible.
e) The rates quoted by the contractors were inclusive of all lead and lift, being item rate tender."
21. The Auditor General of India also took note of the said report, stating:
"Therefore, in spite of the report of the Geologist that the good quality of stone was available in sufficient quantities in the upper portion of the (16 of 47) [ CRLMP-564/2012] quarry situated in the hill mentioned in the agreement and in spite of there being specific provision in the agreements that no additional payment would be acceptable in the event of change in leads or change in quarry, the payments made to the contractors were irregular and resultantly made additional gains of Rs. 102.46 lacs to them."
Pursuant thereto or in furtherance thereof, a complaint was lodged. The matter was investigated by the Special Police Establishment. They collected all the materials and filed a chargesheet in the Court of learned Special Judge on 27.03.1997. The case was registered as Special Case No. 6 of 1997.
27. The fact that the State entered into contracts with the respondent Nos. 8, 9 and 10 is not in dispute. The basic terms of the contract, which we have taken note of, are also not in dispute. What is in dispute is the interpretation and application thereof. The contract contained an arbitration clause. The respondents herein invoked the said arbitration agreement, as noticed hereinbefore, as far back in the year 1987. Indisputably, an award had been made in their favour on the basis of a settlement arrived at by and between the parties. Such a settlement was arrived at on the basis of the stand taken by the authorities of the State of Madhya Pradesh upon entering into detailed deliberations.
34. We would proceed on the basis that two divergent opinions on the construction of the contract in the light of the stand taken by the World Bank as also the earlier decision taken by the State was possible. That, however, would not mean that a fresh decision could not have been taken keeping in view the exigencies of (17 of 47) [ CRLMP-564/2012] the situation. A decision to that effect was not taken only by one officer or one authority. Each one of the authorities was ad idem in their view in the decision making process. Even the Financial Adviser who was an independent person and who had nothing to do with the implementation of the project made recommendations in favour of the contractors stating that if not in law but in equity they were entitled to the additional amount. From the materials available on record, it is crystal clear that the decision taken was a collective one. The decision was required to be taken in the exigency of the situation. It may be an error of judgment but then no material has been brought on record to show that they did so for causing any wrongful gain to themselves or to a third party or for causing wrongful loss to the State.
35. Section 13 of the Act provides for criminal misconduct by a public servant. Such an offence of criminal misconduct by a public servant can be said to have been committed if in terms of Sections 13(1)(d)
(ii)-(iii) a public servant abuses its position and obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any other person any valuable thing or pecuniary advantage without any public interest. Sub-section (2) of Section 13 provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
47. Even under the Act, an offence cannot be said to have been committed only because the public servant has obtained either for himself or for any other person (18 of 47) [ CRLMP-564/2012] any pecuniary advantage. He must do so by abusing his position as public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The materials brought on record do not suggest in any manner whatsoever that the respondent Nos. 1 to 7 either had abused their position or had obtained pecuniary advantage for the respondent Nos. 8, 9 and 10, which was without any public interest.
21. Reliance has also been placed by learned Senior Counsel for the petitioners on the precedent law laid down by the Hon'ble Apex Court in C.K. Jaffer Sharief Vs. State (Through CBI), reported in (2013) 1 SCC 205, relevant paras 15 to 17 of which read as under:-
"15. Adverting to the facts of the present case it has already been noticed that the only allegation against the Appellant is that he had prevailed upon RITES and IRCON to take the four employees in question on "deputation" for the sole purpose of sending them to London in connection with the medical treatment of the Appellant. It is also alleged that neither RITES nor IRCON had any pending business in London and that none of the four persons had not performed any duty pertaining to RITES or IRCON while they were in London; yet the to and fro air fare of all the four persons was paid by the above two Public Sector Undertakings. On the said basis it has been alleged that the accused Appellant had abused his office and caused pecuniary loss to the two Public Sector Undertakings by arranging the visits of the four persons in question to London without any public interest. This, in essence, is the case against the (19 of 47) [ CRLMP-564/2012] accused-appellant.
16. A fundamental principle of criminal jurisprudence with regard to the liability of an accused which may have application to the present case is to be found in the work "Criminal Law" by K.D. Gaur. The relevant passage from the above work may be extracted below:
"Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that their can be no crime without a guilty mind. To make a person criminally accountable it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively."
17. It has already been noticed that the Appellant besides working as the Minister of Railways was the Head of the two Public Sector Undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the Appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the Appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a (20 of 47) [ CRLMP-564/2012] public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under Section 161 show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the Appellant as a public servant can arise. As a Minister it was for the Appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the Rules or Norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the Appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar v. State of Kerala : (1963) Supp. (2) SCR 724 while considering the provisions of Section 5 of Act of 1947."
22. Learned Senior Counsel for the petitioners, in view of the aforecited precedent laws, has argued that the criminal liability is not made out against the present petitioners.
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23. Learned Public Prosecutor has vehemently opposed the submissions made on behalf of the petitioners and submitted that the investigation is complete, and apparently, the petitioners have failed in their duty by not collecting the development charges in accordance with law, and such non-collection of the development charges has resulted into loss of Rs.15.45 lacs to the Municipal Board.
24. Learned Public Prosecutor has emphasized that the independent witnesses have stated in their statements that the petitioners have not collected the development charges, which proves that they were directly responsible for the act.
25. Learned Public Prosecutor has shown from the case diary, the development works conducted by the Municipal Board. Learned Public Prosecutor has also shown from the record that if such an act has been committed by the petitioners, then the very system of the administration shall fail.
26. Learned Public Prosecutor has further shown the statements recorded under Section 161 Cr.P.C. of Shanti Lal Balai, Lower Division Clerk, (Registration Branch), Tehsil Office, Pratapgarh; Shanti Lal Jain, the then Patwari, Pratapgarh; Mangilal Gaur, Assistant Engineer, Ajmer Vidhyut Vitran Nigam Limited, Raipur, District Bhilwara; Shiv Narayan Pal, Junior Engineer, Municipal Board, Pratapgarh; Vijay Khandia, Lower Division Clerk, District Court, Pratapgarh; Nanakram, Class IV Employee, District & Sessions Court, Pratapgarh; and Prem lal, Advocate, Pratapgarh.
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27. The aforesaid statements, on a bare reading, reflect that the conversion was done, however, no substantial development has been done by the patta-holders.
28. Learned Public Prosecutor, in support of his submissions, has relied upon the precedent law laid down by a coordinate Bench of this Court in Rajender Singh Solanki Vs. State of Rajasthan (S.B.Criminal Misc. Petition No.3783/2016 alongwith analogous matters, decided on 03.03.2017), wherein following order was passed:-
"1. The petitioners have preferred separate misc.petitions for quashing of FIR Nos.108/2016, 109/2016, 110/2016 and 111/2016 lodged at Police Station, CPS ACB, Jaipur for offences under Sections 13(1)(C)(D) & 13(2) of the Prevention of Corruption Act and Sections 193, 420, 409 and 120B IPC. As the offences alleged in all the FIRs relate to the Jodhpur Development Authority (hereinafter referred to as 'the JDA'), its Chairman and officers, the present misc.petitions were heard together and are being disposed by this common order.
2. It is contended by counsel for petitioner- Rajendra Singh Solanki that petitioner-Rajendra Singh Solanki was the Chairman of the JDA. He has been roped in the FIR due to political rivalry. It is also contended that the powers of the Chairman are given under the Jodhpur Development Authority Act, 2009 (hereinafter referred to as 'the Act/JDA Act') and the petitioner has not flouted any of the powers assigned to him under the Act.
3. It is further contended by counsel for the petitioner that the JDA is an autonomous body and is (23 of 47) [ CRLMP-564/2012] free to decide as to where the development is to be made in accordance with the need of the society. It is also contended that the JDA is competent to transfer any fund from one project to another, as per the requirement. It is further contended that all actions have been done in pursuance of the Board Resolutions and the allegation in the FIR that the Resolutions were added after the Board Meeting is not correct. On this point, it is urged that the minutes of the Board Meeting have been approved in the subsequent Board Meeting, and since the minutes have been approved, it is amply clear that the Resolutions were passed in the Board Meeting.
4. With regard to the financial autonomy, it is contended that the JDA has financial autonomy. The JDA is free to decide as to how much amount is to be spent in a particular development activity. It is also contended that in all the FIRs, the petitioner has been made an accused just because he was the Chairman of the JDA and was appointed during the Congress regime, and after the BJP Government took over, he submitted his resignation, and whatever action has been initiated is because of the political vendetta. The prosecution has been instituted maliciously with ulterior motive for wreaking vengeance.
5. With regard to rise in the expenditure for certain development activities, it is contended that on the demand made by the residents, Parshads and MLAs, the JDA approves more fund for development activities, which is done in accordance with the procedure laid down under the Act. It is also contended that from the FIR, it is not revealed as to what monetary loss was caused to the JDA or the (24 of 47) [ CRLMP-564/2012] State, or what monetary gain was provided to the contractors. It is further contended that the Board initially sanctioned budget of Rs.250 crores, which, it is alleged, was raised. But in fact, only Rs.107 crores was spent. Therefore, the JDA has not even spent the budget initially sanctioned.
6. Counsel for petitioner-K.K.Mathur, in addition to the arguments advanced by counsel for Rajendra Singh Solanki, has argued that petitioner- K.K.Mathur was posted as Director (Technical) and as per the provisions of the Act, he was required to follow the instructions issued by the Board. Non- compliance of the instructions would result into a departmental enquiry, and therefore, whatever was done by him, was in pursuance of the directions given by the Board. It is also contended that the officers have protection under Section 73 of the JDA Act.
7. In support of his submissions, counsel for petitioner-K.K.Mathur has placed reliance on Himmat Singh Vs. State of Rajasthan, 1982 WLN (UC) 518, wherein it was held that if there was no material that overseer was responsible for identifying labourers receiving payments, the overseer could not be held responsible for making payments of the disputed amounts.
8. It is contended that the procedural lacuna would not tantamount to an offence under the Prevention of Corruption Act. In this regard, reliance has been placed on C.K.Jaffer Sharief Vs. State, 2013 CRI.L.J. 341.
9. Counsel appearing for petitioners- Smt.Santosh Choudhary and other Engineers have stated that there is no allegation with regard to (25 of 47) [ CRLMP-564/2012] unlawful gain against them, and whatever shifting of work has been done, has been done on directions of the Board and the Engineers as such, are not responsible and the proceedings initiated against them is abuse of the process of court. It is contended that more than 30 persons have been arrayed as accused in this case.
10. Learned Additional Advocate General appearing for the State has contended that in the Board Meeting dated 13.08.2013, only 15 matters were kept before the Board but after the Board Meeting, 39 Resolutions were added at the behest of the Chairman without obtaining any plans or details and the amount was inflated as per the wish of the contractors.
11. As an example, it was cited that Rs.1.47 crores was sanctioned for playground at Mandore. The amount was increased by Rs.2 crores for rock cutting, whereas there is no rock at the site. Another illustration cited is with regard to Kaga Samshan Ghat where the work order was issued in October, 2013 for Rs.45,00,000/-, which was revised to Rs.1 crore in September, 2013, that is, even prior to issuance of the main work order.
12. It is also contended by the learned Additional Advocate General that Director (Technical) being Head, is liable to point out the infirmities in the plan. The attention of this Court has also been drawn towards the work sanctioned for five different works at the same premises with different names at Roop Nagar. Work for Rs.45,00,000/- was started at Roop Nagar Community Centre, which was shifted to Khatik Samaj Samshan Ghat, where already Community Hall was being made and for which the (26 of 47) [ CRLMP-564/2012] budget of Rs.33,00,000/- was sanctioned, which was later increased to Rs.93,00,000/-. After shifting the work from Roop Nagar to Khatik Samaj Samshan Ghat, the amount of Rs.45,00,000/- was increased to Rs.1.19 crore within two days. There was no estimate whatsoever and since separate sanction was there for Khatik Samaj Samshan Ghat, there was no justification for shifting the amount fixed for Roop Nagar Work. It is contended that the contractor stopped the work at Khatik Samaj Shamshan Ghat and the same contractor was given the work transferred from Roop Nagar Community Centre. Therefore, to provide benefit to the contractors, the accused connived amongst themselves.
13. The attention of this Court has also been drawn towards a road contract, which was initially sanctioned for road at Jhalamand Navdurga Nagar measuring 8 kms. It is contended that at the site, only 1.2 km. stretch was available for making the road, but a budget of Rs.1.40 crore was sanctioned and on 13.08.2013, the amount was increased by Rs.1 crore. It is contended that the measurement book for Jhalamand Navdurga Nagar was submitted and Rs.1.25 crore was paid, whereas at Jhalamand Navdurga Nagar, no road was constructed, and at the site, only 800 metres gravel was found.
14. The contention that the budget was shifted to other place, was vehemently denied and it was stated that since the amount has been paid as per measurement book of Jhalamand Navdurga Nagar, it has to be inferred that the road was constructed there, where actually no road was constructed.
15. It is also contended by the learned Additional Advocate General that the statement (27 of 47) [ CRLMP-564/2012] under Section 164 Cr.P.C. of Bhanwar Singh has been recorded, who has stated that the minutes were added after the Meeting dated 13.08.2013, which goes to show that the agenda items were added after the Board Meeting, and therefore, the Board Resolution did not have any sanctity of law.
16. The attention of this Court has also been drawn towards the Meeting dated 03.10.2012, wherein the members of the Board expressed their displeasure on non-submission of the proposal for increase in expenditure without conducting technical survey, and it was mentioned that it is the duty of the Director (Technical) to make recommendation.
17. It is further contended by the learned Additional Advocate General that after the enactment of the Rajasthan Transparency Public Procurement Act, 2012 (hereinafter referred to as 'the RTPP Act of 2012'), Section 42 of which makes interference with procurement process as an offence punishable within five years' imprisonment and fine extending to Rs.50,00,000/- and the same being made applicable to the authorities, shifting of money from one project to another without inviting new tenders / objections tantamount to commission of an offence under Section 42 of 'the RTPP Act', and the protection provided under Section 73 of the JDA Act would not be available, as Section 73 only provides immunity to the persons, who have done an act lawfully in good faith and with due care and attention.
18. It is further contended that the scope of entertaining the misc.petition for quashing of the FIR is very limited as held in State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors.,1992 Supp.(1) SCC
335. (28 of 47) [ CRLMP-564/2012]
19. I have considered the rival contentions of the parties.
20. The scope of Section 482 Cr.P.C. is very limited and if the FIR discloses commission of a cognizable offence, the Court can only quash the proceedings if the case falls within the categories as laid down by the Apex Court in State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors. (supra). Sub para (5) & (7) of Para 105 of the said judgment being relevant for the purpose of present petitions is reproduced hereunder:
"5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
21. In Gurumukhdas Vs. State of Rajasthan, 2016 0 Supreme (Raj.) 1086, the Rajasthan High Court has held that it is the statutory right of the police to investigate, where FIR discloses commission of offence, and in such cases, FIR should not be quashed.
22. In Vinod Raghuvanshi Vs. Ajay Arora and Ors., (2013) 10 SCC 581, it was held that while considering the case for quashing a criminal proceeding, the Court should not "kill a still born child" and an appropriate prosecution should not be (29 of 47) [ CRLMP-564/2012] stifled, unless there are compelling circumstances to do so.
23. In N. Soundaram Vs. P.K. Pounraj, (2014) 10 SCC 616, the Apex court held that the power under Section 482 Cr.P.C. has to be exercised sparingly and cautiously to prevent abuse of the process of any court and to secure the ends of justice. It is only when no offence is made out that the High Court would be justified in quashing the proceedings under Section 482 Cr.P.C.
24. In Himmat Singh Vs. State of Rajasthan (supra), the Rajasthan High Court held that when there was no material against a particular person, FIR can be quashed qua that person.
25. In the backdrop of the judgments cited at the Bar, I am of the firm view that FIR disclosing a cognizable offence can be quashed only if it is manifestly attended with malafide and instituted maliciously with ulterior motive for wreaking vengeance. If FIR discloses commission of a cognizable offence, then the same should not be quashed, as it is the primary duty of the police to investigate the offence.
26. Reverting to the facts of this case and the various FIRs that have been lodged with regard to the Chairman and officers posted in JDA, suffice to say that during the tenure of the present petitioner- Rajendra Singh Solanki as Chairman of the JDA, certain development works were started and within a short span, the project cost was increased from 100 to 550 times. As per the investigation done so far, no estimate, demand or spade work was done to arrive at the inflated figure.
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27. It is also apparent that the works sanctioned for a particular place was not done at that place and the payment was made to the contractors showing the work to be done at the original place. Undoubtedly, the JDA is a statutory Authority and has to work in accordance with the JDA Act, but it is equally true that the money, which is to be spent is public money, and therefore, the officers posted there are under legal obligation to discharge their duty in accordance with law.
28. Section 73 of the JDA Act gives immunity to the Authority in respect of anything lawfully and in good faith and with due care and attention done under the Act. Whether the act was lawfully done, in good faith and with due care and attention, is to be adjudged only after due investigation is done by the Anti Corruption Bureau.
29. Chapter VII of the JDA Act deals with Projects and Schemes. Section 39 of the Act makes a provision with regard to making and contents of Projects and Schemes. Section 40 of the Act authorizes the Authority to resolve and declare its intention to prepare a project or scheme. Section 43 of the Act authorizes the Authority to modify the scheme, but the same can be done only by notification published in the Official Gazette and the Official Gazette should contain a declaration that the project or scheme approved under sub-section (4) of Section 40 is withdrawn. As per sub-section (2) of Section 43, if the Authority, after approval of any project or scheme considers it necessary to make certain modifications therein, which do not materially alter the character of the project and scheme, it may make suitable modifications.
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30. The transferring of money from one scheme to another could therefore be done as per the Act, only after an Official Gazette is published declaring the scheme earlier issued as withdrawn. No Gazette notification was published by the Authority before withdrawing any project and the money was sought to be transferred from one scheme to another without any legal authority.
31. In the present case in hand, a Board Meeting was held on 13.08.2013, and as per the allegations in the FIR, only 15 agenda items were kept in the Board Meeting. But when the minutes of the meeting were prepared, the agenda items were increased from 15 to 54, and 39 new agenda items were added without putting the same before the Board Meeting.
32. The Anti Corruption Bureau, during the investigation, has recorded the statement of Bhanwar Singh under Section 164 Cr.P.C., who has stated that the agenda items were increased after the Board Meeting at the behest of the Chairman. He has also deposed that the agenda items were added after 5 to 7 days of the Board Meeting. The statement recorded under Section 164 Cr.P.C. supports the allegation in the FIR that the agenda items were added after the Board Meeting, and the matters which were not discussed in the Board Meeting were also added as Resolutions approved by the Board.
33. As per the investigation done so far, the agenda items which were added after the Board Meeting pertained to increase in the estimate of the development work undertaken by the JDA. These estimates were increased from 100% to 550% (32 of 47) [ CRLMP-564/2012] without there being any estimate or demand, and were made at the whims of the officers. While increasing the estimate amount, the draft project or scheme was not prepared in accordance with Section 39 of the Act, and the amount sought for a particular scheme, was diverted to some other scheme. The amount was also enhanced for certain development work, even after the work was transferred to some other site, on one occasion, even prior to the approval of the main development project.
34. The contention of counsel for the petitioner that the Board in its next meeting approved the agenda items of the earlier meeting, and therefore, it should be assumed that all the agenda items were approved by the Board, do not appeal to this Court, for the reason that in the meeting, the first agenda item is regarding approval of the minutes of the earlier Board Meeting. It cannot at this stage be inferred that all the agenda items were brought to the notice of the members of the Board. Moreover when the matters were not discussed at the Board Meeting, there was no justification for the Chairman to incorporate the Resolutions without discussion.
35. The contention of counsel for the petitioners that the JDA is an autonomous body and is free to deal with its funds, cannot be disputed. But at the same time, the funds do not belong to the Chairman or the Officers, as it is public money and the petitioners being in custody of public money, are under legal obligation to account for the same, and merely because they have been permitted by the Act to allocate the fund as per their wish, they do not get the power to make payments to the contractors without work being carried out.
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36. The glaring example in this regard is the construction of a road, which was approved at Jhalamand Navdurga Nagar. The initial length of the road was stated to be 8 kms. in the estimate, and accordingly, budget of Rs.1.40 crore was sanctioned. From the investigation done so far, it is revealed that on site, only 1.2 km. stretch was available for construction of a road. For the same road at Jhalamand Navdurga Nagar, the budget was increased by Rs.1 crore in the Board Meeting dated 13.08.2013. On site, no road was constructed, but the measurement book mentioned construction of the road at Jhalamand Navdurga Nagar and Rs.1.25 crore was paid to the contractors. All the persons involved in making plans, approving the amount, asking for more money and approving the measurement book are thus responsible.
37. The contention of counsel for petitioner- Rajendra Singh Solanki that the petitioner demitted the office on 08.12.2013, and therefore, even if any payment has been made on account of construction of the road at Jhalamand Navdurga Nagar, Rajendra Singh Solanki is not responsible, do not have appeal to this Court because initially when the budget was sanctioned for the road at Jhalamand Navdurga Nagar, the same was done during the tenure of Rajendra Singh Solanki, and subsequently, when the budget was increased by Rs.1 crore on 13.08.2013, at that time also, Rajendra Singh Solanki was the Chairman of the JDA.
38. The other contention of counsel for the petitioners is that development works have been stopped by the new government and out of the original sanction of Rs.250 crores, only Rs.107 crores (34 of 47) [ CRLMP-564/2012] have been spent, as a result of which development of Jodhpur is affected. The above contention holds no ground as far as deciding the present misc.petitions is concerned, as it is policy decision of the government.
39. The contention of counsel for the petitioners that money allocated for a particular project was shifted to other project, as per the demand of the public representatives and no new tender was invited, as the Authority was competent to get the work done from the contractor at the rate, on which the tenders were earlier approved. The said contention is also not acceptable, since for every development project, a plan has to be approved, the cost has to be calculated and a separate tender has to be invited. The transferring of money from one project to another and increasing the amount and giving the contract to the same contractor were all acts, which were done dehors the power of the Authority.
40. The judgments relied upon by counsel for petitioner-K.K.Mathur also do not have any applicability to the facts of this case, as involvement of the Director (Technical) is made out from perusal of the FIR and he cannot claim protection only on the ground that he was complying with the directions of the Board as it has also come to the notice that for the same site, second tender was invited and the tender was approved by K.K.Mathur. The estimate was signed by some of the petitioners.
41. Yet another allegation in the FIR is that the estimate was purposely kept below Rs.50,00,000/-, so as to give benefit to certain categories of contractors. As per the provisions prevailing in the (35 of 47) [ CRLMP-564/2012] JDA, for project upto Rs.15,00,000/- D Class Category of contractors, for project upto Rs.50,00,000/- C Class Category of contractors, for project upto Rs.1.5 crore B Class Category of contractors and for project upto Rs.3 crores A Class Category of contractors can place their bids. The contention of counsel for the petitioners that even if the contract amount was kept below Rs.50,00,000/-, there was no restriction on B Class Category of contractors to compete with C Class Category of contractors do not have any force, as viewing it from other angle, that is, if the contract would have been properly estimated initially, the contract would be more than Rs.50,00,000/-, and therefore, C Class Category of contractors could not have bidded for the same. Giving the contract to C Class Category of contractors and thereafter increasing the budget estimate above Rs.50,00,000/- was clearly an act to give benefit to C Class Category of contractors. As per sub-clause (b) of Section 42 of the RTPP Act, whoever interferes with the procurement process with the intention of causing any unfair disadvantage for any prospective bidder or bidder is guilty. At this stage, since this matter is under investigation, the preliminary report on the basis of which the FIR has been lodged and the ground that the estimate was kept low to give benefit to a particular class of contractors cannot be said to be improbable.
42. From the discussions made hereinabove, it is apparent that these are not the cases where the Anti Corruption Bureau is proceeding against the petitioners malafide with ulterior motive for wreaking vengeance.
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43. In view of the law laid down in State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors., Gurumukhdas Vs. State of Rajasthan, Vinod Raghuvanshi Vs. Ajay Arora and Ors. and N. Soundaram Vs. P.K. Pounraj (supra), no case is made out for quashing the first information reports.
44. Consequently, the present misc.petitions are dismissed. The stay applications also stand disposed."
29. Learned Public Prosecutor has also placed reliance upon the precedent law laid down by the Hon'ble Apex Court in Ram Narain Poply Vs. Central Bureau of Investigation, reported AIR 2003 SC 2748, wherein the Hon'ble Apex Court has held that the ingredient of an offence need not disclose any overt act in furtherance of the conspiracy, as the conspiracies are not hatched in open; by their nature, they are secretly planned. The Hon'ble Apex Court, in that case, further held that direct evidence were rarely available to prove the conspiracy and the circumstantial evidence can be relied upon.
30. After hearing the learned counsel the parties as well as perusing the record of the case and the other material available on record, including the case diary, as also the precedent laws cited at the Bar, this Court finds that the prosecution has not been able to answer the question, as to what steps were taken by the State to recover the amount of Rs.15.45 on account of the loss caused to the Municipal Board from the patta-holders or in the alternative, what steps were taken for cancellation of the patta so issued, if (37 of 47) [ CRLMP-564/2012] they were issued illegally and contrary to law.
31. On a bare perusal of the complaint, this Court finds that in totality, the case is that in relation Khasra No.457 and 458, one Babu Lal preferred an application under Section 90B of the Act of 1956 and the agricultural land was surrendered for conversion and issuance of a fresh patta.
32. The complaint reads that Ramesh Kumar Parihar, Draftsman -cum- Surveyor issue the No-objection Certificate dated 08.01.2004, as the purpose of the conversion was in line with the purpose laid down in the Master Plan. It is noted by this Court that the sanction against Ramesh Kumar Parihar has been declined by the competent authority of the State Government. The Tehsildar, Pratapgarh, at that time, gave a report to the concerned Sub Divisional Officer on 30.08.2003 stating that the land was free to be allotted to the patta-holder and no matter in relation thereto was subjudice in any other litigation, and according to such reports, the conversion of the land was processed, and the conversion charges were duly paid by the land-holders, in accordance with the circulars annexed i.e. dated 22.12.1999, 30.08.2001 and 20.05.2004.
33. This Court also takes note of the fact that the same circular speaks of the conversion charges being utilized by the concerned Municipal Board proportionately for the development works. The complaint also averred the fact that the cost of the development works was to be borne by the patta-holders, as mentioned in the patta so issued. The pattas were issued under (38 of 47) [ CRLMP-564/2012] the signatures of the petitioners, who were responsible for the acts of the Board, by virtue of their respective position.
34. The complaint, which is at Annexure-1 of the present misc. petition and has been summarized by this Court, further reads that the cost towards development work has been borne by the Municipal Board in relation to the land in question. But the development charges in accordance with the circular dated 06.07.2002, which a colonizer or the township developer was required to pay, were not paid in the present facts of the case. In the complaint itself, the endorsement made in the patta to the effect that the development work shall be done at the instance of the patta-holders, was also recorded. In the complaint, it was alleged that the circulars for deposition of the development charges were not followed and the patta-holders did not carry out any development activity nor deposited any development charges with the Municipal Board, which ought to have been deposited. It was also alleged in the complaint that the patta-holders were supposed to deposit a sum of Rs.15.45 lacs for the purpose of development charges with the Municipal Board, which has not been paid by them, and thus, as per the complaint, the case seemed to be that of conspiracy and violation of the laws pertaining to deposition of the development charges.
35. The complaint further reads that Ramesh Kumar Parihar, Draftsman -cum- Surveyior was allegedly guilty of issuing the No-objection Certificate dated 08.01.2004, and rest of the petitioners were guilty of being signatory to the pattas. The (39 of 47) [ CRLMP-564/2012] conspiracy between the colonizers and the petitioners resulted into loss of development charges to the tune of Rs.15.45 lacs to the Municipal Board, to which the Municipal Board was entitled under the law. Thus, the petitioners have been alleged to have caused the loss to the Municipal Board, and were thus alleged to be guilty of the offences under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act read with Section 120B IPC.
36. On the face of the complaint as alleged and as summarized in the aforesaid paragraphs, this Court is of the opinion that the complaint merely discloses deviation from the circular dated 06.07.2002, whereby the petitioners were required to collect the development charges, but the intention of doing so has not been disclosed in the complaint.
37. Prime role has been attributed in the complaint to Ramesh Kumar Parihar, Draftsman -cum-Surveyor, who has drawn the base line for conversion and issuance of patta by issuing the No-objection Certificate dated 08.01.2004, but it is noted by this Court that the competent authority of the State has declined sanction against Ramesh Kumar Parihar. The State of Rajasthan has failed to point out as to what action has been taken to recover the amount of Rs.15.45 lacs against the due development charges, or for taking adequate steps for cancellation of the pattas, which were granted to the concerned persons. The deviation from the circular is very doubtful, at the threshold, as the circular dated 06.07.2002 only speaks of colonizer and township developer, whereas the present patta-holders were only (40 of 47) [ CRLMP-564/2012] individual private persons having their own land surrendered for conversion and issuance of patta in their own favour.
38. On a bare reading of the FIR, it is clear that the facts stated in the complaint do not constitute the offences, as alleged.
39. The element of corrupt or illegal means for obtaining for himself or for any other person, any valuable thing or pecuniary advantage, with or without public interest, is apparently not found in the present set of facts, as mentioned above.
40. The statement, as produced before this Court by the learned Public Prosecutor, clearly indicate deviation from the circular, which is not disputed, but the same does not show that loss to the tune of Rs.15.45 lacs was caused to the Municipal Board with an intention to have any personal gain or was for any valuable thing or pecuniary advantage obtained by corrupt or illegal means.
41. The consistency in the aforesaid statements was that the lands in khasra No.457 and 458 were converted, but none of the witnesses in their statements levelled any direct allegation against the present petitioners regarding any criminal liability or even supporting the theory of intention of the petitioners to have committed such an act.
42. The abuse of position for obtaining any valuable thing or pecuniary advantage for himself or for any other person is also not found in the present set of allegations. This Court, while considering an overall aspect and the general principle of criminal jurisprudence, as laid down in the precedent law, that the element (41 of 47) [ CRLMP-564/2012] of mens rea and intention must accompany the culpable act or conduct of the accused, is of the opinion that it was necessary that in addition to providing that the accused satisfied the definition of the actus reus of the particular crime charged, the prosecution must also prove mens rea, i.e., that the accused had the necessary mental state or degree of fault at the relevant time.
43. The criminal offences, as per the precedent law, vary in that some may require intention as the mens rea. However, some may require only recklessness or some other state of mind and some are even satisfied by negligence. But the variety in fact goes considerably further than this in that not only do different offences make use of different types of mental element, but also they utilize those elements in different ways. The definite state of mind in relation to causing of the event or the existence of the state of affairs. The event or state of affairs, is called the actus reus and the state of mind, the mens rea of the crime.
44. It is necessary, as per the precedent law, that the Act must have been done by the accused illegally abusing his position as a public servant for obtaining benefit, pecuniary or otherwise for himself or for someone else. This is an offence which would require an intention to accompany the act. The element of mental state would be necessary to do a conscious act to get the required result of pecuniary advantage or to obtain any valuable thing; even if it is for someone else, then too, the element of mental state must be there at the relevant time.
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45. In view of the facts and circumstances mentioned in the precedent law, this Court holds that the facts leading to the charges are not proved and the elements of mens rea and intention are totally lacking in the present set of facts.`
46. It is difficult to visualize as to how in light of the above facts, demonstrated by the materials in the course of investigation, the petitioners can be construed to have adopted corrupt or illegal means or to have abused their respective position for obtaining any valuable thing or pecuniary advantage for themselves or for some other person.
47. The witnesses, whose statements have been recorded under Section 161 Cr.P.C., as referred hereinabove, pertain to the RSEB and the court officials, who have only deposed that the electricity connections have not been taken properly and proper development work has not been done by the developer/colonizer. The only relevant and direct statement is that of Shanti Lal Balai and Shanti Lal Jain, who both are holding the positions in the Municipal Board. The sum and substance of the statement of Shanti Lal Balai, Lower Division Clerk in the Registration Branch of the Municipal Board is that the accused were holding positions and the conversion, as per Section 90B of the Act of 1956 was done. The very allegation made in the complaint is not reflected even in a single word in the statements of Shanti Lal Balai or in the statement of Shanti Lal Jain, who have only reflected the status of the land in question, but have not reflected even a single word, as made in the complaint.
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48. It is amazing to see the case diary and the statements recorded, and thereafter, the conclusion submitted by the learned Public Prosecutor, as they do not connect with the conclusion proposed to be taken by the investigating agency.
49. The total sum and substance of the statements that have been recorded, on the face of it, reflect that they do not substantiate even a single part of the allegations, which would entitle the prosecution to proceed with the proceedings under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act read with Section 120B IPC against the petitioners. It is very strange that the prosecution did not get a single witness to depose that the present act was committed by the petitioners by adopting corrupt or illegal means with an intention to gain some valuable thing or pecuniary advantage for themselves or for some other person.
50. The circular dated 01.01.2002 is not denied, but the prosecution has not been able to show the deviation therefrom for one moment that such circular is required to be abided by, with the further stipulation that any person having knowledge of the same is required to abide by the same, and that, the petitioners knowing fully well about the same, ignored the same, and are thus, liable for prosecution. The said circular dated 01.01.2002, as per para-B thereof, meant for private agricultural lands, requires the same to be applicable only upon a private developers/colonizers and not upon an individual agricultural land- holders.
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51. Even when such a grave doubt has arisen, the circular dated 30.08.2001 clearly shows that 60% of the amount deposited towards conversion charges, which has been admittedly paid in the present case, could be utilized for development work by the concerned local authority.
52. This Court has also taken note of the remark in the patta, whereby it has been specifically indicated that any development charge shall be borne by the patta-holder himself. A perusal of the case diary shows a shoddy investigation by the respondents in a case, where practically no statement has been recorded to substantiate the allegations under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act.
53. The mere ignorance or inability of the petitioners about one circular and many ancillary circulars governing the field could entitle the respondents to have civil action against the petitioners by recovering the loss caused to the Municipal board, and also to take appropriate action against the patta-holder for cancellation of his patta, or directing in the alternative to the patta-holder to deposit the development charges in accordance with the relevant circular. But none of the above has been adhered to, and thus, it is a clear case where no intention or any crime is reflected, and where the mens rea is clearly missing. The rules and norms applicable may have been followed, but to say that the same actuated by dishonest intention to obtain any undue pecuniary advantage is not correct. The gist of Section 13(1)(d) of the Prevention of Corruption Act, as quoted above, is implicit in the (45 of 47) [ CRLMP-564/2012] words used "corrupt or illegal means" and "abuse of position" as a public servant.
54. The precedent law of Rajender Singh Solanki Vs. State of Rajasthan (supra) cited by the learned Public Prosecutor is not applicable to the facts of the present case, as in that case, the coordinate Bench of this Court was satisfied that the FIR itself constituted the offence, on the face of it, and the action of the petitioners in that case, was held to be fit to be investigated by the Anti Corruption Bureau, and no interference in that case, at the preliminary stage, was called for.
55. The case of Rajender Singh Solanki Vs. State of Rajasthan (supra) further was decided on its own facts and the doctrine of actus reus and mens rea of the crime involved therein. Whereas the application of criminal jurisprudence has to be made independently in the facts of each and every case. On the face of it, in the present case, on a bare reading of the complaint itself, no offence or role has been attributed to the present petitioners, which is forbidden by criminal law and nowhere it reflects that the petitioners were not in a definite state of mind in relation to causing of the event or the existence of the state of affairs.
56. The another precedent law of Ram Narain Poply Vs. Central Bureau of Investigation (supra) cited by learned Public Prosecutor was a case, which pertained to a security scam, whereby the public funds were allowed to be utilized for wrongful gain by financial brokers, which was apparently a totally different streak of offence, arising out of cheating, criminal breach of trust, (46 of 47) [ CRLMP-564/2012] forgery of documents, abuse of public office and dishonest misappropriation of public funds under Sections 120B, 409, 420, 467 and 471 IPC and Sections 13(2) and 13(1)(c) of the Prevention of Corruption Act, and therefore, the facts of that case were different and do not call for being applicable in the present case.
57. This Court, in view of the above, holds that the condition mentioned in the patta itself to the effect that the patta- holder shall himself be responsible for any development work, sufficiently saddled the patta-holder with the responsibility of the development works, and therefore, no loss could be caused to the Municipal Board, which admittedly, has not done a single rupee job in relation to the development over the said property. Further, the development charges to be collected were to be spent on the same property for the purpose of development and the Municipal Board would have been a custodian of the same charges only for the purpose of spending them again on the same property. Whereas in this case, neither the charges were paid, nor the development work was done. However, it is pertinent to note that the patta-holder himself was having the complete liability, as per the condition mentioned in the patta, to bear the development charges.
58. In light of the aforesaid discussion and the precedent law cited by learned Senior Counsel for the petitioners, the present misc. petitions are allowed and the impugned FIR No.308/2008 dated 16.12.2008 registered at District Anti (47 of 47) [ CRLMP-564/2012] Corruption Bureau, Chittorgarh Thana, C.P.S. A.C.B., Jaipur / Police Station, Anti Corruption Bureau, Jaipur for the offences under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 read with Section 120B IPC alongwith the entire proceedings pursuant thereto are quashed and set aside. The stay applications also stand disposed of.
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-