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Madhya Pradesh High Court · body

2008 DIGILAW 596 (MP)

SURESH KUMAR AGRAWAL v. STATE OF M. P.

2008-04-21

R.C.MISHRA

body2008
Judgment R.C.Mishra, J. ( 1. ) These interlinked petitions, under Section 482 of the Code of Criminal Procedure (for short Code), have been preferred for having the FIR and the consequent investigation quashed. The corresponding case has been registered as Crime No. 19/05 at Economic Offences Wing, Rewa in respect of offences punishable under Sections 120-B, 420, 467, 468 and 471 of the IPC and section 13(1) read with section 13(2) of the Prevention of Corruption Act, 1988. ( 2. ) At the relevant point of time, R.P. Dewangan, the petitioner in MCrC No.3 901/2007 was posted as Sub-Divisional Officer and Registrar, Public Trust at Rewa whereas Vineet Tiwari and Pardheshwar Pandey, the petitioners in MCrC No. 3114/2007, were respectively working as Assistant Superintendent, Land Records (Diversion) and Patwari in Revenue Circle No.23, Tahsil Hujur District Rewa and Suresh Kumar Agrawal and Nagendra Singh, the petitioners in MCrC No. 3107/2007 were posted respectively as Tahsildar, Rewa and Patwari in the same Revenue Circle. ( 3. ) Shri Ujjenin Maharani Public Trust Anahalaya, Rewa is a Public Trust as defined in sub-section (4) of Section 2 of the M.P. Public Trust Act, 1951 (for brevity the Act) and is duly registered under Section 4 thereof. The under-mentioned lands situated in Rewa are the properties of the Trust:- ( 4. ) Out of these lands, an area of 2.60 acres forming part of land bearing survey no. 805, the entire area of 1.77 acres of the land bearing survey no. 1204 and 0.25 acre of the land bearing survey no. 1205 were sold to 35 persons, named in Annexure nos. 4, 5 and 6 in MCrC No. 3901/07. These pieces of lands belonging to the Trust have been transferred under the permission granted by the petitioner R.P Dewangan as Registrar, Public Trust, vide order dated 02.12.1998 passed in Case Nos. 58/B-121/ 95-96 and 185/B-121/96-97. ( 5. ) Recitals of the FIR may be summarized as under : - The resolution to sell the lands belonging to the Trust was moved by Mordhwaj Singh (since dead), the then President of the Trust Accordingly, an application for grant of permission was submitted before R.P. Dewangan, the then Registrar, Public Trust on 30.12.1995 He, however, during discharge of his public function, entered into a conspiracy with office bearers of the Trust namely Nripand Singh. Ram Sanjeevan Pidiha and Krishna Swaroop Dusaj and in pursuance thereof, granted permission to sell the lands against the interests of the beneficiaries of the Trust. Moreover, the pieces of lands having a market value of Rs.53,87,120/- were sold for a total consideration of Rs.36,23,083/- only and, thus, a wrongful loss of Rs. 17,64.037 was caused to the Trust. ( 6. ) , Shri Anil Khare, learned counsel for R.P. Dewangan has strenuously contended that the registration of a criminal case and resultant investigation is an abuse of the process of the Court in view of the following facts : (i) the order granting permission was passed after following the prescribed procedure in a quasi-judicial proceedings initiated upon the application moved by the President of the Trust on 30.12.1995. (ii) Under Clause 12(d) of the Constitution of the Public Trust, a decision to sell its property can be taken by a majority of not less than two-third of the members of the management committee subject to ratification by the General Body. (iii) Corresponding resolution was passed by the management committee on 25.10.1995 and it was ratified by the General Body on 22.12.1995. (iv) Initially, the sanction to prosecute the applicant was refused by the State Government. ( 7. ) Learned counsel for R.P. Dewangan has further urged that the allegations made in the FIR are apparently malicious in view of the fact that he had taken all reasonable precautions before granting permission. For this, attention has been invited to the following conditions incorporated in the corresponding order : - (i) The land shall not be sold to any Trusty or his near relative. (ii) The land shall not be sold at a price less than the prevalent market value thereof. (iii) The sale deed shall be placed before the Registrar for perusal before being submitted for registration. However, the fact of the matter is that the allegations against R.P.Dewangan relate to some extraneous consideration influencing the quasi-judicial order. ( 8. ) Shri Manish Datt, learned counsel for the other petitioners, while endorsing the stand taken by the petitioner R.P. Dewangan, has contended that for a criminal prosecution, something has to be alleged than a mere mistake of law. ( 8. ) Shri Manish Datt, learned counsel for the other petitioners, while endorsing the stand taken by the petitioner R.P. Dewangan, has contended that for a criminal prosecution, something has to be alleged than a mere mistake of law. He is further of the view that after apparently valid transfer of various parts of the Trust land in favour of different persons under the permission granted by R.P. Dewangan, the other petitioners had no other option except to incorporate corresponding entries in the revenue record in accordance with the provisions of Sections 109 and 110 of the M.P. Land Revenue Code, 1955. He is further of the view that the prosecution of the petitioners would only bring about the administrative adjudication into disrepute, as it is not a case for initiating any disciplinary proceedings against the petitioners. For this, reference has been made to the decision of the Apex Court in Zunjarrao Bhikaji Nagarkar vs. Union of India (1999) 7 SCC 409 . ( 9. ) ln response, learned Dy. Govt. Advocate has submitted that no interference under the inherent powers with the statutory power! of police to investigate and file charge-sheet is called for. ( 10. ) Sub-section (1) of Section 14 of the Act prohibits sale etc. of property belonging to a public Trust. The provision reads : - 14. Previous sanction of Registrar, in cases of sale, etc. of property belonging to a public trust (1) subject to the direction in the instrument of trust or any direction given under this or any other law by any Court - (a) no sale, mortgage, exchange of gift of any immovable property, and (b) no lease for a period exceeding seven years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or building belonging to a public trust, shall be valid without the previous sanction of the Registrar. (2) The Registrar shall not refuse his sanction in respect of any transaction specified in sub-section (1) unless such transaction will, in his opinion, be prejudicial to the interests of the public trust. ( 11. ) The previous sanction, thus, protects the Trust property from unjustified or unscrupulous transfers. The concept of previous sanction signifies that there should be a reasoned order accepting the proposed transfer. ( 11. ) The previous sanction, thus, protects the Trust property from unjustified or unscrupulous transfers. The concept of previous sanction signifies that there should be a reasoned order accepting the proposed transfer. The permission to transfer Trust property may be refused when it is prejudicial to the interests of the Trust. Law, therefore, presumes that Registrar shall act fairly and objectively and accord sanction only when he is satisfied that the proposed transfer is not prejudicial to interests of the Trust. ( 12. ) Adverting to the facts of the case on hand, it may be observed that the order dated 02.12.1998 passed by petitioner R.P. Dewangan does not answer the relevant question as to how the proposed transfer of land was not prejudicial to the interests of the Trust. The constitution of the Trust reflects that it was created as back as in 1933 for welfare of orphans and helpless children irrespective of their caste and creed. As indicated in the order : - (a) entire area of land bearing survey numbers 791, 792 and 793 had already been acquired by the government. (b) persons living in the vicinity had unauthorizedly occupied the land having survey no. 940. (c) on 0.40 acre area of land bearing survey no. 805, temple, well residence and approach road were situated. (d) on 0.25 acre are of land having survey no. 1205, school, one house and pathway for sewerage were situated, ( 13. ) In such a situation, even after a resolution by the management committee to that effect, R.P. Dewangan was under an obligation to consider as to how proposed sell of lands adjacent to the school, temple and residential accommodations was in the interests of the Trust. However, the order granting omnibus permission to sell the lands does not reflect as to what was the legal necessity justifying the sale of Trust property. Further, as contemplated in sub-section (2) of Section 14 of the Act (supra), he was required to scrutinize each and every sale transaction relating to Trust property and to grant specific permission therefor. That having been not done the transfers of pieces of lands belonging to the public Trust were not valid and, accordingly, were not binding on the Trust. ( 14. ) Taking note of the concept of accessory liability for having assisted in a breach of trust, each one of the other petitioners viz. That having been not done the transfers of pieces of lands belonging to the public Trust were not valid and, accordingly, were not binding on the Trust. ( 14. ) Taking note of the concept of accessory liability for having assisted in a breach of trust, each one of the other petitioners viz. the Revenue Officials, though not charged for having received Trust income or assets for their own benefit, can also not escape liability for having acted as an accessory to a breach of trust by carrying out mutations in the corresponding revenue records on the basis of apparently invalid sale transactions by virtue of Section 14(1) [supra]. ( 15. ) In State of Haryana vs. Bhajan Lal AIR 1992 SC 604 , the Supreme Court, after illustrating category of cases attracting interference under Section 482 of the Code, also sounded a note of caution to the effect that the power of quashing the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases. Accordingly, the FIR disclosing commission of an offence punishable under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act 1988, does not deserve to be quashed on the ground of delay. ( 16. ) Further, the inherent powers, under Section 482 of the Code, are to exercised ex debito justitiae to prevent abuse of the process of Court but not to stifle a legitimate prosecution, when the issue involved, whether factual or legal, can not be decided without sufficient material (Minu Kumari vs. State of Bihar (2006) 4 SCC 359 referred to). ( 17. ) In this view of the matter, no interference, under the inherent powers, is called for. ( 18. ) The petition, therefore, stands dismissed. However, nothing contained herein shall be construed as any expression of opinion on the merits of the case. It shall still be open to the petitioners to raise all such pleas as are available under law, at the stage of charge, in case a charge-sheet is filed against them. ( 19. ) A copy of the order be retained in the connected petitions. Petitions dismissed.