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Jharkhand High Court · body

2012 DIGILAW 1738 (JHR)

Azam Khan v. State of Jharkhand

2012-12-17

R.R.PRASAD

body2012
Order Heard learned counsel appearing for the petitioners and learned counsel appearing for the State as well as learned counsel appearing for the opposite party No.2. 2. This application has been filed for quashing of the entire criminal proceeding of Complaint Case No. 216 of 2010, including the order dated 16.7.2010, whereby and whereunder, cognizance of the offences punishable under Sections 120B, 467, 471, 323 and 504 of the Indian Penal Code has been taken against the petitioners. 3. Before adverting to the submissions advanced on behalf of the parties the case of the complainant needs to be taken notice of. 4. It is the case of the complainant that the land bearing Plot Nos. 4617, 4839 and 4882, measuring total area of 6.95 acres, was leased out to the complainant for mining minor mineral. Thereafter, the complainant started doing mining work. While he was engaged in doing mining work, the accused Ashok Kumar Singh, Bikhari Thakur and Jato Hazam one day approached to the complainant and asked for money. They held out threat that if the money would not be paid, they would not allow him to do the mining work rather he will be ousted from there. 5. Further case is that on 11.7.2009, all the aforesaid accused persons came and told the complainant that they had purchased the land and asked the complainant to stop the mining work and they started doing the mining work. When the complainant asked them to stop doing so, they started hurling abuses upon him. Subsequently, the complainant came to know that the petitioner No.1, who, at the relevant point of time, was halka karmchari and the petitioner No.2, a Circle Inspector, had submitted a report in favour of Ashok Kumar Singh with respect to the aforesaid land, which report was forged and fabricated and thereby on the basis of forged and fabricated report, mutation order was passed. 6. On such allegation, complaint case was lodged as Complaint Case No. 216 of 2010. Upon such complaint, when the cognizance of the offences, as aforesaid was taken, that order was challenged in this application. 7. Mr. 6. On such allegation, complaint case was lodged as Complaint Case No. 216 of 2010. Upon such complaint, when the cognizance of the offences, as aforesaid was taken, that order was challenged in this application. 7. Mr. N.K. Prasad, learned counsel appearing for the petitioners submits that accepting the entire allegation to be true, no offence of forgery is made out as the petitioners under the order passed by the Additional Collector, had submitted its report vide Annexure-7/2, when after disposal of the case by the Additional Collector, Soberan Thakur and Jato Hazam had sold the land to Ashok Kumar Singh and on that basis, Ashok Kumar Singh had made an application for mutating his name against the vended land and, therefore, the petitioners by submitting such report, reporting factual aspect of the matter, did not commit any offence of forgery and thereby, the court has committed illegality in taking cognizance of the offences under Sections 120B, 467, 471, 323 and 504 of the Indian Penal Code, so far these petitioners are concerned, who are halka karamchari and the Circle Inspector. 8. As against this, learned counsel appearing for the opposite party No. 2 submits that a mining lease had been given to the complainant over the land said to have been sold by Soberan Thakur and Jato Hazam to one Ashok Kumar Singh which act itself was quite illegal on the part of the seller as admittedly the land, in question, was given to the petitioner by way of mining lease and further when an application was filed before the Circle Officer, Koderma, for mutating the land, the order of mutation was passed in favour of Ashok Kumar Singh without giving notice to the leaseholder and since the complainant was leaseholder, petitioners should have mentioned about these facts in their report, but since this fact, has not been stated by these petitioners in their report, they can be said to have committed offence of forgery. 9. In the context of the submissions, it is to be considered that as to whether the petitioners have committed any act of forgery. Straight way, I may refer to a decision rendered in a case of Mohammed Ibrahim and Ors. Vs. State of Bihar and Anr. 9. In the context of the submissions, it is to be considered that as to whether the petitioners have committed any act of forgery. Straight way, I may refer to a decision rendered in a case of Mohammed Ibrahim and Ors. Vs. State of Bihar and Anr. [ (2009)8 SCC 751 ] = 2009(4) JLJR (SC)74], wherein their Lordships after having regard of the provision as contained in Section 470 of the Indian Penal Code as well as other provisions relating to forgery did observe as follows: "The condition precedent for an offence under Sections 467 and 471 is forgery: The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused." 10. The Court has further observed that analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories as follows: "The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a documents in any material part, without lawful authority, after it has been made or executed by either himself or any other person. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not be reason of:- (a) unsoundness of mind; (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not be reason of:- (a) unsoundness of mind; (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration. In short, a person is said to have made a 'false statement', if (i) he made or executed a document claiming to be someone else or authorized by some one else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses. The sale deeds executed by the first appellant clearly and obviously do not fall under the second and third categories of "false statement". It, therefore, remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing• forgery' of the documents with the intention of taking possession of the complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with the first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorized or empowered by the owner to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false document", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted." 11. Thus, it has been categorically held that when a document is executed by a person claiming a property though it is not his property but when he is not claiming that he is authorized by someone else or he is someone else, execution of such document cannot be said to be a false document in terms of Section 464 of the Indian Penal Code and if it is not a false document, then the question of committing an offence under Sections 467, 468 and 471 does not arise. 12. Here in the instant case, the petitioners in their report have stated about the fact which has never been denied to have been the wrong fact and thereby, the petitioners cannot be said to have committed forgery in terms of Section 464 of the Indian Penal Code, even if the petitioners failed to mention about the factum of the existence of lease in favour of the complainant over the land, in question. 13. Under the circumstances, the court has certainly committed illegality in taking cognizance of the offences and hence, entire criminal proceeding of Complaint Case No.216 of 2010 including the order taking cognizance dated 16.7.2010, is hereby, quashed, so far these petitioners are concerned. 14. In the result, this application stands allowed.