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2005 DIGILAW 222 (CHH)

H. P. KINDO v. STATE OF C. G.

2005-06-25

A.K.PATNAIK, SATISH K.AGNIHOTRI

body2005
ORDER As per Hon'ble Shri Satish K. Agnihotri, J. :- 1. The present petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (herein after referred to as "Cr.P.C.") for quashing charge sheet dated 31-01-2004 for prosecution of the applicant filed in the Court of Special Judge, Durg on 03-02-2004 for the offences punishable under Sections 13(1) (d) and 13(2) of the Prevention of Corruption Act. 1988 and under Section 120-B of the Indian Penal Code, 1860 filed by the respondent No.3/Anti Corruption Bureau, Raipur. 2. Undisputed facts in this case are as under: The competent authority, Durg under the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (herein after referred to as "the Ceiling Act") initiated the proceedings against one Dinesh Prasad Agrawal in case No. 869/A-1991 (B)(iii)/74-75 to determine surplus land under the provisions of the Ceiling Act. During enquiry, it was discovered from the return submitted by the holder of the land that on cut off date i.e. 15-11-1961, the holders of the land had certain piece land in Tehsil Baloda Bazar, District Raipur also in addition to the holding of the land in District Durg. Under Section 2(e) of the Ceiling Act, the competent authority in respect of the land holder whose entire land is situated in more than one district, the Commissioner/Additional Commissioner of the Revenue Division was notified as competent authority. In the present case since the land holder was having land in more than two districts, the Commissioner/Additional Commissioner, Raipur was notified as the competent authority. Accordingly, the said ceiling case was transferred from the Court of Sub Divisional Officer, Durg to that of the Additional Commissioner, Raipur and the case was renumbered as Ceiling Case No. 376 & 370-B/90 (3) 74-75 & 75-76. The Additional Commissioner, Raipur vide his Order dated 09-11-1984 declared 306.70 acres of land as surplus against the land holder Shri Dinesh Prasad Agrawal. The holder Shri Dinesh Prasad Agrawal preferred an appeal before the Board of Revenue, Gwalior (M.P.), the same was registered as Appeal No.4 & 6-7/85 and the appeal was dismissed on 09-07-1985 . 3. The Additional Commissioner, Raipur vide his Order dated 09-11-1984 declared 306.70 acres of land as surplus against the land holder Shri Dinesh Prasad Agrawal. The holder Shri Dinesh Prasad Agrawal preferred an appeal before the Board of Revenue, Gwalior (M.P.), the same was registered as Appeal No.4 & 6-7/85 and the appeal was dismissed on 09-07-1985 . 3. Shri Dinesh Prasad Agrawal filed a Civil Suit in the Court of Second Civil Judge Class-I, Durg for declaration and perpetual injunction on 20-10-1985 challenging the order of Additional Commissioner, Raipur passed on 09-11-1984 whereby 306.70 acres of land was declared surplus land under the Ceiling Act as without having jurisdiction. The said Civil Suit was registered as Civil Suit No.05-A of 1985. Shri Dinesh Prasad Agrawal also filed an application for grant of temporary injunction under Order 39 Rule 1 & 2 of the Code of Civil Procedure, 1908. 4. The Collector. Durg appointed the sub Divisional Officer, Durg as Officer In charge for the Civil Suit in anticipation of the approval by the State Government. Shri D.P. Gupta was then posted as Sub Divisional Officer. Durg. Shri Bhanwar Lal Jain, Government Advocate was appointed as counsel by the Collector stating that the copy of the reply be sent to the Office of the Collector so that the same can be forwarded to the State Government. Shri B.L. Jain the then Government Advocate filed a reply to the application under Order 39 Rule 1 & 2 of the Code of Civil Procedure duly supported by an affidavit of the then Officer In charge Shri D.P. Gupta. Shri D.P. Gupta was transferred and left Office of the Sub Divisional Officer, Durg in September 1986. The present applicant Shri H.P Kindo joined as sub Divisional Officer, Durg in September 1986 and continued in the office till 20th June, 1989. 5. On 15-12-1988, counsel for the plaintiff and the Government Advocate Shri B.L. Jain for the defendants filed an application under Order 23 Rule 3 of the Code of Civil Procedure for compromise stating that the land located in District Raipur had been sold and as such Commissioner, Raipur has no jurisdiction under provisions of the Ceiling Act. 5. On 15-12-1988, counsel for the plaintiff and the Government Advocate Shri B.L. Jain for the defendants filed an application under Order 23 Rule 3 of the Code of Civil Procedure for compromise stating that the land located in District Raipur had been sold and as such Commissioner, Raipur has no jurisdiction under provisions of the Ceiling Act. On 16-011989, the first Civil Judge Class-I, Durg passed an Order in terms of compromise holding that the Commissioner, Raipur has no jurisdiction to consider the case under the Ceiling Act as the land of plaintiff (Dinesh Prasad Agrawal) was situated in District Durg only. Sub Divisional Officer, Durg was held to be only competent officer under the Ceiling Act to decide the case. The Civil Judge Class-l set aside the order passed by the Commissioner, Raipur. 6. On 17-12-1990 Smt. Laxmi Bai Agrawal, Ku. Mohini Agrawal and Dinesh Prasad Agrawal filed an application before the Sub Divisional Officer, Durg for reopening of the Ceiling Case in terms of the order dated 16-01-1989 passed by the First Civil Judge Class-I, Durg and to redecide the Casco Shri R.A. Khandelwal was Sub Divisional Officer from 21-04-1990 till 05-12-[991. The then Sub Divisional Officer Shri R.A. Khandelwal passed an order in ceiling case on 27 -09-199 I declaring 14.39 acres of land as surplus. 7. On the basis of anonymous compliant, FIR under Section 154 of the Cr.P.C. was lodged by the Special Police Establishment, Bhopal for offences under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act and Section 120-B of the Indian Penal Code, against Shri R.A. Khandelwal, Sub Divisional Officer, Durg, Shri B.L. Jain, the then Government Advocate, Shri Dinesh Prasad Agrawal, land holder Village Dhamda, District Durg and other Officers In charge (the then Sub Divisional Officers). After investigation, Anti Corruption Bureau, Special Police Establishment filed a challan in the Court of Special Judge, Durg against Shri R.A. Khandelwal and 5 others including the present applicant Shri H.P. Kindo. In the meantime, the State Government granted sanction for prosecution under Section 13(1)(d) and 13(2) of Prevention of Corruption Act and Section 120-B of Indian Penal Code on 10-10-2003. 8. The applicant filed an application under Section 227 of the Cr.P.C. in the Court of Special Judge, Durg from discharging the applicant/accused of the charges levelled against him. The Special Judge dismissed the application on 29-03-2004. 9. 8. The applicant filed an application under Section 227 of the Cr.P.C. in the Court of Special Judge, Durg from discharging the applicant/accused of the charges levelled against him. The Special Judge dismissed the application on 29-03-2004. 9. The applicant filed the present petition under Section 482 of Cr.P.C. to quash the charge sheet against the applicant for the offences under Section 120-B of the Indian Penal Code and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act in Criminal Case NO.3 of 2004 pending before the Court of Special Judge, Durg. 10. The respondents do not dispute the facts of the case. 11. Mr. N.S. Kale, learned Sr. Advocate assisted by Mr. Anant Bajpai, learned counsel appearing for the applicant submitted that the facts stated in the charge sheet, if taken in its entirety does not constitute any offence under Sections 13(1) (d) and 13(2) of Prevention of Conniption Act and under Section 120-B of Indian Penal Code, as such the same deserves to be quashed in the interest of justice. Learned counsel for the applicant further submits that there is no allegation against the applicant in the FIR, challan as well as Final Report. FIR mentions that the present applicant has failed to perform his duty as officer in charge by not informing the Government immediately that the Government Advocate had entered into a compromise with the parties illegally. FIR mentions only against other Sub Divisional Officers and the then Government Advocate B.L. Jain to the effect that Shri Jain in conspiracy with Shri Dinesh Prasad Agrawal decided to file compromise application without any authority of the State Government and against the public interest. The compromise application was singed by the then Government Advocate alone. The applicant further did not inform the Government for preferring an appeal against the order of compromise passed by the Civil Judge. It was submitted that the challan/final report under Section 173 of the Cr.P.C. states that the applicant being Officer In charge did neither inform the Collector nor the Government about the order passed by the Civil Judge and further did not send a proposal for filing of appeal. It was further stated in the challan/final report that the applicant Shri H.P. Kindo was Officer In charge during the period when compromise took place. It was further stated in the challan/final report that the applicant Shri H.P. Kindo was Officer In charge during the period when compromise took place. Having failed to inform the State Government about compromise decree and a proposal for filing appeal thereafter, the applicant had failed to perform his duty as Officer In charge. The learned counsel further submitted that the challan clearly states that the then Government Advocate entered into a compromise without informing the Officer In charge and without seeking approval of the State Government. The then Government Advocate filed an application for compromise under his signature without obtaining the signature of the Officer In charge as provided under Order 23 Rule 3 of the Code of Civil Procedure. 12. The learned counsel further submitted that Law Department Manual provides for the duties of the Officer In charge in Rule 142 of Law Department Manual wherein it is not obligatory for the Officer In charge to inform the decision and send the proposal to Government, it was the responsibility of the Government Advocate to inform the decision and the proposal for appeal to the Officer In charge as well as to the State Government directly as the Government Advocate was specially appointed for the case. 13. The learned counsel for the applicant finds faults with the sanction order dated 10- 10-2003. also stating that Mr. H.P. Kindo, the then Sub Divisional Officer has failed to defend the case of the State properly. It was further stated that the applicant has not informed about the decision of the case and has not sent proposal to the Government for filing the appeal. The learned counsel submits that the applicant was in no way responsible by not sending information to the Government about the compromise decree and further proposal to the Government for filing an appeal as the applicant himself was unaware in absence of information from the then Government Advocate. The challan clearly states that the Government Advocate has entered into a compromise with the private party without any information or approval of the Government/Officer In charge, illegally and as such the entire facts as narrated in the FIR, Challan, Final Report under Section 173 of Cr.P.C. and sanction order for prosecution, do not constitute any offence under Section 120.B of the Indian Penal Code and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act. 14. Mr. 14. Mr. Pramod Verma, learned Additional Advocate General appearing for the State of Chhattisgarh/respondents does not dispute the facts stated by the learned counsel for the applicant. The learned Counsel for the respondents submits that on the basis of investigation, it is inferred that he did not deliberately inform the Government about the decision of the Civil Judge and did further not send a proposal to the Government for filing an appeal against the order of Civil Judge. The learned counsel further submits that the applicant being Officer In charge was under obligation to inform the Government about various stages of the case and decision thereafter. The Officer In charge was further under obligation to send a proposal immediately for filing of appeal, to the Government. The applicant ignored the repeated reminders dated 16-01-1987, 10-12-1987 and 03-05-1989 and the Officer In charge has not informed the Government about the compromise order and as such the applicant had failed in performance of his duty as Officer In charge. The learned counsel for the respondents further submits that it can be inferred from the conduct of the applicant by non-sending reply to the letters of the Government and by not informing compromise order on his own and further by not sending proposal for filing an appeal against the order of Civil Judge, has committed criminal conspiracy under Section 120-6 of Indian Penal Code. It was submitted by the respondents that facts contained in FIR. the challan and final Report clearly make out a case for prosecution under Sections 13(1) (d) and 13(2) of Prevention of Corruption Act, 1988. 15. After hearing both the parties and perusing the records, it is found that the facts as stated above do not constitute the offences under Section 120-B of Indian Penal Code and Sections 13(1)(d) and 13(2) of Prevention of Corruption Act. the offence of conspiracy has been defined in Section 120-A of the Indian Penal Code to be an agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means but there is no allegation in the present case of any agreement between the petitioner and any other person to do any illegal act or any legal act by illegal means. Sections 13(1)(d)(iii) of the Prevention of Corruption Act provides that if a public servant while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest is said to have committed offence of criminal misconduct. In the present case, there is no allegation that the applicant has obtained for any person any valuable thing or pecuniary advantage without any public interest. It is clear from the facts of the case that at the most it may be a case of negligence. The allegation made in the FIR and/or challan, the materials filed with the police report and the facts stated in the sanction order taken as it is in its entirety do not disclose the commission of the offences under Section 120-6 of Indian Penal Code and Sections 13(1)(d) and 13(2) of Prevention of Corruption Act. The Supreme court in the case of State of Haryana & others Vs. Bhajanlal & Others in para 102 has laid certain Illustrative examples, which shows under Section 482 of Cr.P.C. can be exercised. It reads as under: "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. (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 entirely do not prima facie constitute any offence or make out a case against the accused. (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 entirely 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 does 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. (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." In the case of Stare of H. P. Vs. Pirthi Chand The Supreme Court has held in para 12, as under: "It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinize the F.I.R/charge sheet/ complaint. Pirthi Chand The Supreme Court has held in para 12, as under: "It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinize the F.I.R/charge sheet/ complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that F.I.R is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge sheet. At that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The court has to prima facie consider from the averments in the charge sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge sheet. But only in exceptional cases. i.e. in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint of FIR itself does not disclose at all any cognizable offence the court may embark Upon the consideration thereof and exercise the power." In Medchal Chemical & Pharma (P) Ltd. Vs. Biologicla Ltd the Supreme Court has held in para 14, as under: "14 xxx xxx, the complaint in its entirely hall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has not authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint." In Dilawar Babu Kurane Vs. State of Maharashtra4, the Supreme Court has held in para 12, as under: "12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally Possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." In K. Ramakrishna & Others Vs. State of Bihar and Another, the Supreme Court has held in para 3, as under: "3. The inherent powers of the High Court under Section 482 of the Code of Criminal procedure can be exercised to quash proceedings, in appropriate cases either to prevent the abuse of process of any Court or otherwise to secure the ends of justice. Ordinarily the criminal proceedings which are instituted against the accused must be tried and taken to logical conclusions under the Code of Criminal Procedure and the High Court should be reluctant to interfere with the proceedings at an interlocutory stage. Ordinarily the criminal proceedings which are instituted against the accused must be tried and taken to logical conclusions under the Code of Criminal Procedure and the High Court should be reluctant to interfere with the proceedings at an interlocutory stage. However, there may be cases where the inherent jurisdiction to quash proceedings can and should be exercised. Where there is a legal bar against the institution or continuance of the criminal proceedings in respect of the alleged offence, the High Court should not be reluctant to exercise the inherent jurisdiction. Similarly where the allegations in the FIR or the complaint even if they are taken aft their face value do not constitute the offence alleged, or without appreciating the evidence but only merely by looking at the complaint or the FIR or the accompanying documents, the offence alleged is not disclosed, the person proceeded against in such a frivolous criminal litigation has to be saved." In the case of State of A.P Vs. Golconda Linga Swamy and Another, the Supreme Court has held in para 8, as under: "8. As noted above the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal Vs. H.S. Chowdhary and Raghubir Saran (Dr.) Vs. State of Bihar]. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. H.S. Chowdhary and Raghubir Saran (Dr.) Vs. State of Bihar]. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is Open to the High Court to quash the same in exercise of the inherent Powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that even there would be no justification for interference by the High Court." Keeping in view the settled position of law as enumerated in series of decisions by the Supreme Court, it is held that on perusal of the FIR, challan, final report under Section 173 of the Cr.P.C. and all the documents, we are satisfied that no case is made out against the applicant namely Shri H.P Kindo under provisions of Section 120-B of Indian Penal Code and Sections 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988. Accordingly, the charge sheet against the applicant Shri. H.P Kindo for the offences under Section l20-B of the Indian Penal Code and Sections 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 pending consideration in Criminal Case NO.3 of 2004 is quashed. Petition Allowed.