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Jharkhand High Court · body

2011 DIGILAW 126 (JHR)

Vijoy Klshore Sahay v. State of Jharkhand

2011-02-24

JAYA ROY

body2011
Order Heard the learned counsel for the petitioner and the learned counsel for the Vigilance. 2. Petitioner has filed the instant case for quashing the order dated 18.1.2010 passed by Sri Binay Kant Khan, the Special Judge, Vigilance, Ranchi whereby he has taken cognizance under Sections 467, 468, 469, 471, 477A, 409, 120B, 109, 423,424,201 of I.P.C. and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 in Special Case No. 17 of 2000 against the petitioner and also for quashing the entire Criminal Proceeding in connection with Vigilance P.S. Case No. 30 of 2000. 3. The learned counsel for the petitioner submits that the instant Patna Sadar Vigilance P.S. Case No. 30 of 2000 has been registered on 13.11.2000 by one Shri Shiv Kumar Jha, Dy. S.P.-cum-Vigilance, P.S. In-charge, Patna against 30 persons including the petitioner who is arrayed at Serial No. (b-3) in the list of the accused persons in the F.I.R. The short case according to the aforesaid information dated 10.11.2000 submitted by Karam Dayal Oraon, Dy. S.P. Vigilance, Ranchi, Camp, Patna is that an enquiry team was constituted in the Vigilance Investigation Bureau, Patna to enquire into Ranchi Land Scam and by office Order No. 393 dated 31.8.2000, a direction was issued to the said informant and one Sukhdeo Pandey, Police Inspector for enquiry into the allegations made at Column-4. In the said enquiry, the following facts were discovered:- The Revisional Survey Khatian PartII was perused in relation to the Nankum Circle within Ranchi District in Mouza Mashilong Thana No. 176 Khata 263, Plot No. 1656 and 1661. It was found that Plot Nos. 1656 area 4.75 acres is "Parti Kadim'" Gair Majurwa Malik land in Khewat No.2 and similarly in Plot 1661 area is 25.60 acres 'Parti Pattar-Gair Majurwa Malik' and the Lagan Holder for both the plots is 'Secretary of State for India in council. The aforesaid plot no. 1661, 19.86 acres of land was initially settled by the State of Bihar through the then Assistant Secretary to the Govt. Shri V.P. Ghosh vide Memo No. A/G.L. 335/59/5359R dated 24.7.1959. In the name of Dr. S.C. Hom, Secretary, Nature Cure Home, Old Commissioner's Compound, Ranchi for which decision/permission was granted by the State for Agriculture Horticulture/Khetri-Bari (cultivation) and direction was issued for fixing the Annual Lagan. Shri V.P. Ghosh vide Memo No. A/G.L. 335/59/5359R dated 24.7.1959. In the name of Dr. S.C. Hom, Secretary, Nature Cure Home, Old Commissioner's Compound, Ranchi for which decision/permission was granted by the State for Agriculture Horticulture/Khetri-Bari (cultivation) and direction was issued for fixing the Annual Lagan. The relevant facts for the instant case in respect of the petitioner according to the aforesaid written information is that on 30.3.1960 Parwana was issued in the name of the Dr. S.C. Hom in respect of Plot No.1661, area 19.60 acres land for cultivation as Raiyati Bandobasti in Khata No. 263, Mauza-Mahilong. In respect of the said land jamabandi proceeding was initiated vide settlement Misc. Case No. 5-R-8/6465 in the name of Dr. S.C. Hom in Namkum Circle Office, which according to the information against the Rule and was illegal. A Hukumnama was issued for Raiyati settlement in respect of aforesaid plot no. 1656, area 4.75 acres land by the then in-charge Dy. Collector (Land Reforms) Sadar, Ranchi without the permission of the Government, in the name of Dr. S.C. Hom. This was confirmed by Sri Rameshwar Nayak, the then Head Assistant Office of I/C L.RD.C., Sadar, Ranchi on 18.8.1972. On the basis of the said illegal settlement, the then I/C L.R.D.C., Ranchi Sri S.K. Sinha issued rent schedule on 18.8.1972 in the name of Dr. S.C.Hom in Misc. Case No. 59-R-8/71-72. In the said rent schedule Khata No. was wrongly shown as 262, whereas the. plot no. 1656 doesn't fall under Khata No. 262. In this way settlement Parwana was issued by the I/C Dy. Collector, Sadar, Ranchi separately bearing 4.75 acres in plot no. 1656 and 19.86 Acres in plot no. 1661, i.e. a total area of 24.61 acres of lands aforesaid. After the death of aforesaid Dr. S.C. Hom, the said lands were transferred in the name of his only son Ranjit Kumar Hom, by the then Circle Officer, Namkum Sri N.P. Singh, in Legal heir mutation case No. 51-R-27/78-79. The said Ranjit Kumar Hom transferred 7 acres of Lands in plot no. 1661 in favour of Dr. S.C. Bagchi, Bardhaman Compound, P.S.Lalpur, District-Ranchi, vide registered Sale Deed No. 373 dated 21.1.1980. It is allged that the petitioner Vijoy Kishore Sahay conspirerl and vide mutation case no. 38-R-27/80-81 created jamabandi in the name of Dr. S.C. Bagchi. Further the said Dr. 1661 in favour of Dr. S.C. Bagchi, Bardhaman Compound, P.S.Lalpur, District-Ranchi, vide registered Sale Deed No. 373 dated 21.1.1980. It is allged that the petitioner Vijoy Kishore Sahay conspirerl and vide mutation case no. 38-R-27/80-81 created jamabandi in the name of Dr. S.C. Bagchi. Further the said Dr. S.C. Bagchi sold and transferred the aforesaid purchased lands subsequently in the name of Smt. Shiv Dulari Gupta, Smt. Meena Rani Gupta and Smt. Nalini Gupta, resident of Hazaribagh Road Ranchi. It is alleged that the then C.O., Namkum, Vijoy Kishore Sahay conspired and by Mutation Case No. 35-R-271 82-83 created jamabandi. Further, vide Mutation Case No. 9-R-27/84-85 the petitioner passed order creating jamabandi in the name of Subhash Chandra Sharma and others. The said Subhash Chandra Sharma and others transferred lands subsequently in the name of Ram SwroopRungta and few others. Subsequently in 1991-92 Misc. Case was instituted for canceling the jamabandi and finally on 14.6.1995 all the cases were disposed of and the jamabandi in the name of Ram Chandra Rungta and others were cancelled. Against the said cancellation of the four jamabandis Ram Chandra Rungta and others filed Revenue Appeal No. 400/1995 in the Court of Commissioner, South Chotanagpur, Ranchi. In the said appeal finally the cancellations of jamabandi were set aside. It is alleged that the then Commissioner, South Chotanagpur, Sri S.S. Verma was in conspiracy. During enquiry, it was found that the said Sri S.S. Verma, when he was Deputy Commissioner, Ranchi had written several letters to Sri M.P. Yadav, the then S.D.O., Ranchi to report for taking action against the officers in whose connivance doubtful and illegal jamabandi were opened, and had written about the said to the Commissioner and the Secretary, Revenue and Land Reforms Department, Bihar, Patna on 9.9.1997 etc. Based on the facts stated in the written information, recommendation was made for instituting F.I.R. against the accused persons named therein. The name of the petitioner appears at Para NO.11 of the said written information dated 10.11.2000 submitted by the said Karam Dayal Oraon, Dy. S.P. Vigilance Investigation Bureau, Ranchi, Camp Patna. 4. Based on the facts stated in the written information, recommendation was made for instituting F.I.R. against the accused persons named therein. The name of the petitioner appears at Para NO.11 of the said written information dated 10.11.2000 submitted by the said Karam Dayal Oraon, Dy. S.P. Vigilance Investigation Bureau, Ranchi, Camp Patna. 4. The learned counsel for the petitioner submits that the petitioner is innocent and he has not committed any offence, he had passed the order in quasijudicial proceeding and the same if found to be incorrect or wrong, there is provision of appeal and revision against the said order and not for lodging the F.I.R. The petitioner had passed the order on the basis of the Registered Sale Deeds and on the basis of the records and the report in respect of the possession under bona fide circumstances. There are no particular imputations against the present petitioner of having acted in any manner to attract the Panel Provisions of I.P.C. or Prevention of Corruption Act. The other sections prescribed in the F.I.R. do not apply upon this petitioner as he had not made any settlement far less any forged settlement, rather the case in the F.I.R. is that the settlement is made in favour of Mr. Hom and subsequently, Mr. Hom had made settlements. Thereafter, the others were the purchaser or the transferee of Mr. Hom. 5. The Counsel for the petitioner has further submitted that in the present case no sanction has been obtained by the prosecution against the petitioner on the ground that he is retired public servant therefore, the order taking cognizance is illegal and fit to be quashed. In this regard he has cited two decisions of the Hon'ble Apex Court i.e. A.I.R. 2004 S.C. 2179 and 2006(1) S.C.C. 294 . 6. The counsel of the petitioner has further submitted that in the present case F.I.R. was lodged in the year 2000, chargesheet has been filed in the year 2010 and thereafter, cognizance has been taken in the year 2010. 7. Mr. T.N. Verma, the counsel of the Vigilance, submits that the petitioner was the Circle Officer at the relevant period and he was the person, whose duty was to enquire the every detail of the lands in question. Therefore, he is definitely responsible as mentioned in the contents of the F.I.R. 8. Mr. 7. Mr. T.N. Verma, the counsel of the Vigilance, submits that the petitioner was the Circle Officer at the relevant period and he was the person, whose duty was to enquire the every detail of the lands in question. Therefore, he is definitely responsible as mentioned in the contents of the F.I.R. 8. Mr. Verma has further submitted that according to the decision of the Hon'ble Apex Court report in A.LR. 1999 S.C. 2405 in the case of State of Kerala VS. V. Padmanabhan Nair the Hon'ble Apex Court has held:- "6. The correct legal position, therefore, is that an accused facing prosecution for offences under the P.C. Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the Court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings in so far as they related to offences under the P.C. Act. 7. That apart, the contention of the respondent that for offences under Ss. 406 and 409 read with S. 120B of the I.P.C. sanction under S. 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli vs. State of Bombay, A.I.R. 1955 SC 287; (1955 Cri. L.J. 857) and also Amrik Singh vs. State of Pepsu, AIR 1955 SC 309 ; (1955 Cri. L.J. 865) that it is not every offence committed by a public servant which requires sanction for prosecution under S.197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad (1972 Cri. L.J. 707) (supra) as follows:- "As far as the offence of criminal conspiracy punishable under S. 120B, read with S. 409, IPC is concerned and also S. 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in S. 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. To put it shortly, it is no part of the duty of public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under S.197 of the Code of Criminal Procedure is, therefore, no bar." 9. In view of the aforesaid decision of the Hon'ble Apex Court, in my opinion, the trial court is absolutely right in holding that as Vijoy Kishore Sahay and Nagendra Prasad Roy are retired •Government servant, sanction order is not required for taking cognizance against them. 10. Considering the submissions made by the both the parties and perused the materials on record, I find there are sufficient materials against the petitioner regarding his involvement in the offence, furthermore, admittedly he was the Circle Officer at the relevant period, I am not inclined to quash the entire criminal proceeding against the petitioner. Moreover, I do not find any illegality in the order taking cognizance. It is, accordingly, dismissed.