Himachal Pradesh High Court
Rattan Bahadur Thapa vs State Of Himachal Pradesh on 24 August, 2024
Neutral Citation No. ( 2024:HHC:7306 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 568 of 2021 Reserved on: 31.07.2024.
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Date of Decision: 24.08.2024.
Rattan Bahadur Thapa ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner
For the Respondent :
:
r to
Mr. Kashmir Singh, Advocate.
Mr. Ajit Sharma, Deputy Advocate
General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for quashing of FIR No. 12 of 2009, dated 28.10.2009, registered for the commission of offences punishable under Sections 420, 467, 468, 471, 201 and 120-B of Indian Penal Code (hereinafter referred to as IPC) and Section 13(2) of Prevention of Corruption Act, 1988 registered at Police Station, State Vigilance and Anti-
Corruption Bureau, Kullu, H.P., the summoning order dated 08.04.2021 and the charge sheet submitted against the petitioner.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. It has been asserted that a complaint was received at the Police Station, State Vigilance and Anti-Corruption Bureau, .
Kullu stating that a mutation of inheritance was attested in Patwar Circle Bhalyani Phati Brahamana on 09.06.1997 in the names of Rajinder Pal and Jagat Ram. One Khayali Ram had solemnized two marriages. The names of his wives were Smt. Jumi Devi and Smt. Sainu Devi. Smt. Jumi Devi had three daughters and one son Thakur Dass, whereas the second wife Sainu Devi had one daughter from her previous marriage.
Khayali Ram was succeeded by his wives after his death. Land measuring 3-16-0 bigha fell to the share of Sainu Devi. She executed a Will in favour of Rajinder Pal and her grandson Sh.
Jagat Ram in equal shares. Rajinder Pal was shown to be a resident of Akhara Bazar Kullu. Sainu Devi died on 14.12.1993.
The Will was put up before Patwari, Patwar Circle Bhalyani on 09.06.1997. He entered a Will in the register of Mutation at Sl.
No. 958. Entry No. 327 was recorded by the Patwari in his daily diary. The petitioner attested mutation no. 958 on 31.10.1997 based on the Will. Subsequently, it was found while verifying the jamabandies for the years 2000-01 that mutation No. 958 was wrongly attested in the name of Rajinder Pal and his address ::: Downloaded on - 24/08/2024 20:29:38 :::CIS 3 Neutral Citation No. ( 2024:HHC:7306 ) was also wrongly mentioned. Rajinder Pal was not an agriculturist and he was a resident of Noida (Utter Pradesh).
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Rajinder Kumar succeeded in getting a certificate of agriculturists and purchased the land measuring 22 Bighas at Kasauli. The attestation of the mutation was a result of conspiracy between Rajinder Pal, Patwari and other persons.
The police conducted the investigation and filed a charge sheet.
The learned Special Judge, Kullu passed an order on 06.07.2013 holding that the charge sheet was pre-mature and he returned the same to the Vigilance Department. The Vigilance Department conducted further investigation and submitted a charge sheet on 26.03.2021 against the petitioner and other accused. Learned Special Judge took cognizance of the offence and ordered the summoning of the petitioner. The fresh charge sheet could not have been submitted, as the Vigilance department had already submitted a charge sheet on 23.01.2012.
Learned Special Judge erred in returning the charge sheet on 06.07.2013 by holding that it was premature. The order returning the charge sheet to the Vigilance department is illegal, arbitrary and unconstitutional. The learned Special Judge had no jurisdiction to return the charge sheet after taking the ::: Downloaded on - 24/08/2024 20:29:38 :::CIS 4 Neutral Citation No. ( 2024:HHC:7306 ) cognizance. The petitioner was posted as Tehsildar in the year 1996. The entry made by the Patwari was verified by the .
Kanungo. The petitioner attested the mutation as per the verifications made by Patwari and Kanungo. No information was supplied to the petitioner that the Will was the result of forgery or cheating. The petitioner would not have attested the mutation if any wrongdoing was brought to his notice. The heirs of Sainu Devi were present at the time of the attestation. Lambardaar and other witnesses were also present. They represented that Rajinder Pal was the adopted son of the deceased. The petitioner had no right to refuse the attestation of the mutation once it was affirmed by the local persons. The petitioner never issued any certificate of agriculturists nor he countersigned the same. The petitioner has no role in the execution of the Will. Therefore, it was prayed that the present petition be allowed and the FIR be ordered to be quashed.
3. The petition is opposed by the State by filing a reply denying the contents of the petition. It was asserted that the police registered the FIR and conducted the investigation.
Learned Special Judge was competent to pass an order returning the challan/chargesheet. The petitioner did not assail the order ::: Downloaded on - 24/08/2024 20:29:38 :::CIS 5 Neutral Citation No. ( 2024:HHC:7306 ) dated 06.07.2013 within the period of limitation and the order has attained finality. The Will was executed in favour of Jagat .
Ram and Rajinder Pal. The petitioner had attested the mutation based on an unregistered Will. The petitioner being the Tehsildar was duty bound to verify the correctness of the mutation being attested by him. He had attested the mutation in connivance with the other co-accused. No prosecution sanction was obtained by the investigating agency from the competent authority. The petitioner was discharging his official duties while attesting the mutation and the prosecution sanction was required. The challan was returned to the prosecution to enable it to obtain the prosecution sanction. Therefore, it was prayed that the present petition be dismissed.
4. I have heard Mr. Kashmir Singh, learned Counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State.
5. Mr. Kashmir Singh, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The mutation was attested on 31.10.1997 based on the unregistered Will dated 04.09.1993. Section 118 of the H.P. Tenancy and Land Reforms Act was amended with effect from ::: Downloaded on - 24/08/2024 20:29:38 :::CIS 6 Neutral Citation No. ( 2024:HHC:7306 ) 04.04.1995. Sainu Devi had died on 14.12.1993. The death had taken place before the amendment of the Act. There was no .
restriction in executing the Will in favour of non-agriculturists on the date of death. The mutation was attested for fiscal purposes and did not confer any rights. The petitioner had not issued any agriculturist certificate and the petitioner was duty bound to attest the mutation once the contents of the Will were affirmed by the local persons, witnesses to Will and the beneficiary. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court summoning the accused/petitioner be set aside. He relied upon the judgments of Bikash Ranjan Rout versus State of H.P. criminal appeal No. 687 of 2019 decided on 16.04.2019 and Phool Chandra Arya versus State of U.P. & Others, Application No. 11514 of 2002 decided on 25.05.2016 in support of his submission.
6. Mr Ajit Sharma, learned Deputy Advocate General for respondent/State submitted that the complaint disclosed the commission of cognizable offence; hence, the FIR was registered. The police conducted the investigation and found sufficient reasons to file the chargesheet. Learned Trial Court is seized of the matter and an opportunity should be given to the ::: Downloaded on - 24/08/2024 20:29:38 :::CIS 7 Neutral Citation No. ( 2024:HHC:7306 ) learned Trial Court to adjudicate the facts on merit. Therefore, he prayed that the present petition be dismissed.
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7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
8. The parameters for exercising jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it was observed: - r
9. The law with regard to the exercise of jurisdiction under Section 482 of Cr. P.C. to quash complaints and criminal proceedings has been succinctly summarized by this Court in the case of Indian Oil Corporation v. NEPC India Limited (2006) 6 SCC 736: 2006 INSC 452 after considering the earlier precedents. It will be apposite to refer to the following observations of this Court in the said case, which read thus:
"12. The principles relating to the exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few--
Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692: 1988 SCC (Cri) 234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri) 1059], Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) ::: Downloaded on - 24/08/2024 20:29:38 :::CIS 8 Neutral Citation No. ( 2024:HHC:7306 ) 3 SCC 269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri) 786], M. Krishnan v. Vijay Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works .
Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122: 2005 SCC (Cri) 283]. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed r inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution.
The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are necessary for making out the offence.
::: Downloaded on - 24/08/2024 20:29:38 :::CIS9 Neutral Citation No. ( 2024:HHC:7306 ) (v.) A given set of facts may make out: (a) purely a civil wrong; (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, .
apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
9. Similar is the judgment in Maneesha Yadav v. State of U.P., 2024 SCC OnLine SC 643, wherein it was held: -
12. We may gainfully refer to the following observations of this Court in the case of State of Haryana v. Bhajan Lal1992 Supp (1) SCC 335: 1990 INSC 363:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.::: Downloaded on - 24/08/2024 20:29:38 :::CIS
10 Neutral Citation No. ( 2024:HHC:7306 ) (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute .
any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(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.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
::: Downloaded on - 24/08/2024 20:29:38 :::CIS11 Neutral Citation No. ( 2024:HHC:7306 ) (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.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the r court to act according to its whim or caprice."
10. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
11. The petitioner is aggrieved by the order dated 06.07.2013, vide which the learned Special Judge ordered the return of the chargesheet. It was held that a charge sheet was filed against the accused on the ground that the Will was wrongly executed in favour of Rajinder Pal, who was a non-
agriculturist at the time of attestation of the Will. Any instrument executed in violation of Section 118 of the HP Tenancy and Land Reforms Act is void and the State has the power to confiscate the property purchased under the instrument. The proceedings for confiscation of the property were not initiated in the present case and there was a possibility ::: Downloaded on - 24/08/2024 20:29:38 :::CIS 12 Neutral Citation No. ( 2024:HHC:7306 ) of conflicting findings regarding the validity of the Will. Hence, the chargesheet was returned to enable the police to take the .
proceedings for confiscation.
12. This order was passed in the year 2013 and the petitioner never assailed the same. He filed the present petition on 04.10.2021. He could not have assailed the order passed in the year 2013 by filing a petition after the lapse of 8 years. No limitation has indeed been provided to exercise the jurisdiction under Section 482 of Cr.P.C. but this is extraordinary power and a person has to approach the Court within a reasonable time.
Further, the Court will not exercise the jurisdiction under Section 482 of Cr.PC when an equally efficacious remedy is available. Hence, the plea of the petitioner that the order passed in the year 2013 is bad is not acceptable.
13. It appears that the mutation attested by the petitioner was challenged before the Financial Commissioner (Appeals) in revision petition No. 71/2014 titled Rajinder Pal Khosla versus Thakur Dass and others decided on 17.12.2018, He held that the succession never remains in abeyance and the property vested in the beneficiaries on the death of Sainu Devi on 04.09.1993. The provisions of the HP Tenancy and Land ::: Downloaded on - 24/08/2024 20:29:38 :::CIS 13 Neutral Citation No. ( 2024:HHC:7306 ) Reforms Act as they existed on that day did not prohibit the execution of the Will in favour of non-agriculturalists.
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14. These findings have attained finality and are binding upon the parties. These findings show that the petitioner had attested the mutation based on the Will when there was no prohibition for attesting such mutations. Hence, the premise of the complaint that the petitioner had erred while attesting the mutation is not correct.
15. There is a force in the submission of learned counsel for the petitioner that mutation proceedings do not decide the title and are recorded merely for fiscal purposes to determine the person, who is liable to pay the land revenue to the State.
Once the property was vested in Rajinder Pal on the death of Sainu Devi, the revenue record was to be updated to mention the person liable to pay the land revenue to the State and the petitioner cannot be faulted for the attestation of the mutation.
16. The FIR has been registered against the petitioner for the attestation of the mutation. It was held by Allahabad High Court in Phool Chandra Arya v. State of U.P., 2016 SCC OnLine All 3328 that the attestation of the mutation in the name of purchasers mentioned in the sale deed does not attract the ::: Downloaded on - 24/08/2024 20:29:38 :::CIS 14 Neutral Citation No. ( 2024:HHC:7306 ) provisions of Sections 419, 420, 467, 468, 406 of IPC and Section 13(d) of the Prevention of Corruption Act. It was .
observed:
"32. The prosecution has submitted a charge sheet against the applicant under sections 419, 420, 467, 468, 471, 406 IPC and 13(1)(d) of the P.C. Act, Police Station George Town, District Allahabad. A bare perusal of the record would disclose that the applicant has not been accused of making a false document, as defined under section 464 IPC. Making of false document is a condition precedent for the offence under sections 467, 468 and 471 IPC. There is no allegation much less evidence to show that any false document was prepared by the applicant, therefore, the offence under sections 467, 468 and 471 IPC are not attracted at all. [Mohammad Ibrahim v. State of Bihar (2007) 4 SCC 247]
33. Similarly, for attracting ingredients of sections 419 and 420 IPC inducement to deliver property to any person or to make alter or to destroy whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security is essential. The fact of the matter is that the sale deed was executed and registered in Mumbai between the vendors and vendees. There is no allegation that the applicant was present in Mumbai at the relevant time.
The entire evidence discloses no action on the part of the applicant except conducting mutation proceedings under the Revenue law, subsequent to the application made by the purchasers. There is no material involvement of the applicant in the execution and registration of the deed. ingredients of section 415 IPC are totally absent; it cannot be said that the offences punishable under sections 419 and 420 IPC are made out against the applicant. The role of the applicant has been delineated by the prosecution itself and his role is limited to mutation proceedings only. There is, in fact, no allegation or whisper that prior to ::: Downloaded on - 24/08/2024 20:29:38 :::CIS
15 Neutral Citation No. ( 2024:HHC:7306 ) mutation proceedings, the applicant was involved with any party at all.
34. As far as that leaves only of fence under section 13(1)
(d) of P.C. Act a bare perusal of section 13(1)(d) of P.C Act .
would reveal that public servant can only be prosecuted under the aforesaid provision, if he by corrupt or illegal means, obtains for himself or any other person any valuable thing or pecuniary advantage, or by abusing his position as a public servant, obtains for himself or any other person an) valuable thing or pecuniary advantage or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
35. There is absolutely no whisper that the applicant obtained any valuable thing or pecuniary advantage by abusing his position as a public servant or b) using his office for the said advantage Such allegations are virtually absent, therefore, the applicant cannot be prosecuted under section 13(1)(d) of P.C. Act."
17. In the present case also, there is no allegation in the FIR or the charge sheet that the petitioner had taken any money for the attestation of the mutation. The only allegation is that he had attested mutation contrary to the provisions of Section 118 of the HP Tenancy and Land Reforms Act which is not sufficient to attract the provisions of Sections 420, 467, 471 and 120B of IPC read with Section 13 of the Prevention of Corruption Act.
Moreover, the learned Financial Commissioner (Appeals) has upheld the validity of the mutation.
18. Thus, continuation of the proceedings in the present FIR will be an abuse of the process of the Court and cannot ::: Downloaded on - 24/08/2024 20:29:38 :::CIS 16 Neutral Citation No. ( 2024:HHC:7306 ) allowed. Consequently, the present petition is allowed and the FIR No. 12 of 2009, dated 28.10.2009, registered for the .
commission of offences punishable under Sections 420, 467, 468, 471, 201 and 120-B of IPC and Section 13(2) of the Prevention of Corruption Act, 1988 registered at Police Station, State Vigilance and Anti-Corruption Bureau, Kullu, H.P. and the consequent proceedings arising out of the same are ordered to be quashed qua the petitioner.
19. Pending miscellaneous applications, if any, also stands disposed of.
(Rakesh Kainthla) Judge 24th August, 2024 (Nikita) ::: Downloaded on - 24/08/2024 20:29:38 :::CIS