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2011 DIGILAW 473 (UTT)

PURUSHOTTAM NAUTIYAL v. STATE OF UTTARANCHAL

2011-07-28

SERVESH KUMAR GUPTA

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JUDGMENT Hon’ble Servesh Kumar Gupta, J.: Heard upon the restoration application moved by the applicant Purushottam Nautiyal, whose petition under section 482 was dismissed in non-prosecution. Alongwith the restoration application, the entire facts on merit have also been brought on record. On perusal of the application, I find that sufficient grounds have been furnished to allow the application. Restoration application is accordingly allowed. 2. Heard on merits of the petition. 3. By way of this petition, petitioner Sri Nautiyal has challenged the order of cognizance passed by learned Chief Judicial Magistrate, Dehradun in Criminal Case No. 908 of 2004 (State Vs. Purushottam Nautiyal). 4. Having heard the strenuous arguments of learned counsel for the petitioner, it appears that in the outskirts of Mussoorie (Dehradun), there was a vacant abundant land admeasuring more than 17 acres. One Sri Shambhu Prasad Dabral moved an application before the competent officer for allotment of the said land in his favour. Shambhu Prasad Dabral died and his son H.P. Dabral pursued the matter and got that entire land auctioned in his favour for a consideration of Rs. 3,000/- dated 18.3.1983. With the passage of time, it was revealed that this huge land has been got auctioned by H.P. Dabral at a throwaway price. The first information report was lodged on 15.1.1999 wherein after the investigation, the chargesheet was submitted against H.P. Dabral. H.P. Dabral moved an application before the C.J.M. praying for his discharge and the then learned C.J.M. of Dehradun after recording his verdict, discharged Sri H.P. Dabral from the offences u/s 420, 467, 468 and 120-B IPC dated 21.3.2001. 5. The matter did not become silent and again came in controversy and it was revealed that the actual culprit behind this entire auction was the petitioner Purushottam Nautiyal, who was posted in Mussoorrie town as Naib Tehsildar since 1977 to 1984. Basically, the competent officer asked the report from the S.D.M. Mussoorrie regarding the nature and ownership of the land and the propriety in favour of Sri H.P. Dabral for the transfer of the questioned land. This petitioner Sri Purushottam Nautiyal submitted his report dated 21.7.1980 estimating the value of land as Rs. 2,000/- per acre and he proposed the transfer of this land in favour of Sri H.P. Dabral on the ground that Sri Dabral is a poor and small salary getting employee government servant. This petitioner Sri Purushottam Nautiyal submitted his report dated 21.7.1980 estimating the value of land as Rs. 2,000/- per acre and he proposed the transfer of this land in favour of Sri H.P. Dabral on the ground that Sri Dabral is a poor and small salary getting employee government servant. It was also disclosed that this property is an evacuee property and it has been heard by him that the property belonged to some Muslim person, who have left for Pakistan at the time of division. So after detailed investigation, chargesheet has been submitted against the petitioner, the quashing whereof has been sought through this petition. It has also been revealed in the investigation that this petitioner, who was Naib Tehsildar, submitted his report regarding the ownership of the land only on the basis of cursory and shallow enquiry from the surrounding neighbours and he did not verify the title on the basis of any record, while he is deemed to be the supervisory custodian of the entire revenue record. It is also pertinent to mention here that the name of H.P. Dabral, against whom the second FIR was filed, is not relevant in the instant case because no chargesheet was submitted against him. Needless to say that the name of applicant has been revealed as the main culprit only in the investigation upon the second F.I.R. It is also relevant to mention here that against the petitioner Purushottam Nautiyal, chargesheet has been submitted after elaborate investigation. During investigation, it was revealed that the real culprit is not Sri H.P. Dabral but the petitioner Purushottam Nautiyal and thus, the chargehseet was submitted against him, absolving Sri H.P. Dabral. 6. Learned counsel for the petitioner has contended that the property was auctioned, not on the basis of the report of the petitioner but subsequent thereto, there was another report dated 18.10.1980 submitted by another Naib Tehsildar. This 18.10.1980 report is not clear as to which officer had submitted this report, if any. There is no name, nor any signature upon the alleged report of 18.10.1980, which is annexure no. 3 filed by the petitioner. More so, it has been revealed in the investigation that during the span of period from 1977 to 1984, it was only Sri Purushottam Nautiyal who was the Naib Tehsildar of the area. So his report was made the basis for auction. 7. 3 filed by the petitioner. More so, it has been revealed in the investigation that during the span of period from 1977 to 1984, it was only Sri Purushottam Nautiyal who was the Naib Tehsildar of the area. So his report was made the basis for auction. 7. Learned counsel for the petitioner has also contended that when on first occasion, the FIR had been lodged on 15.1.1999 and then this second FIR could not have been lodged. He has relied upon a precedent of the Hon’ble Apex Court in the case of “T.T. Antony Vs. State of Kerala & others reported in 2001 SCC (Cri) 1048”. As per the observation of the Hon’ble Apex Court, there can be no second FIR and no fresh investigation could have been conducted on the same facts but the learned Brief Holder has contended that even if there has been some irregularity on the part of the State in registering the FIR the applicant being not prejudiced with the lodging of this FIR, cannot take the advantage of this precedent. The contention of learned counsel for the applicant would have been substantial had the chargesheet been filed against Sri H.P. Dabral only. But here that is not the case. After investigation, it was found that real culprit is Sri Purushottam Nautiyal, so in that way by making the fresh investigation on the basis of second FIR, albeit the irregularity, the applicant has not been prejudiced. It was also contended on behalf of the State that the settled position of law is that ‘discharge’ does not amount to acquittal. Even during trial of Sri Purushottam Nautiyal, there remains scope to summon Shri H.P. Dabral again, if the evidence is found sufficient against him. So, this way, I do not find that the order of cogniznace is interfereable and the petition is liable to be dismissed. C482 petition is accordingly dismissed.