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2012 DIGILAW 943 (PNJ)

Suresh Kumar, Kanungo v. State of Haryana

2012-07-19

MEHINDER SINGH SULLAR

body2012
JUDGMENT Mr. Mehinder Singh Sullar, J.: (Oral) - The epitome of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, is that, in the wake of reference, the Land Acquisition Collector referred the matter to the Land Acquisition Court for determination of the adequate market price and apportionment of compensation between the person interested of the acquired land, as contemplated under sections 18 & 30 of the Land Acquisition Act, 1894. Consequently, LAC Case No.253 of 2006 titled as “Ishwar Singh Vs. State of Haryana” was slated for evidence. The claimants Ishwar Singh and others had earlier produced jamabandis for the years 1989-90 (Ex.P5) & 1994-95 (Ex.P6), in which, in Column No.9, Risala son of Churia was recorded as a tenant (gairmaurusi) on payment of rent (lagan) of Rs.350/- of the land in dispute. 2. On the contrary, the respondents (therein) examined petitioner Suresh Kumar, Kanungo as a witness, who has intentionally produced the already prepared fake jamabandis (against the original record) for the years 1994-95 (Ex.R2) and 1989-90 (Ex.R3) regarding the same very land. In subsequent jamabandis produced by the petitioner, the entry of tenant (gairmaurusi) against the payment of rent (lagan) of Rs.350/- was missing in column No.9. In order to verify the correctness, genuineness or otherwise of subsequent produced jamabandis (Ex.R2) & (Ex.R3), the Court summoned Parmod Kumar, Patwari as a Court witness, who brought the original record and made the statement that in the jamabandis for the years 1989-90 & 1994-95, Risala son of Churia was recorded in possession as a tenant (gairmaurusi) and there was an entry in column No.9 regarding the payment of rent (lagan) of Rs.350/- as well. 3. Therefore, the Court concluded that the petitioner (Kanungo), being a public servant, prepared the fake/false jamabandis, outside the Court, intentionally omitted the entry of tenant (gairmaurusi) in column No.9 and subsequently produced the forged documents in Court as genuine, in order to deprive the tenant (gairmaurusi) (person interested) from his legitimate right of compensation in the acquired land. 3. Therefore, the Court concluded that the petitioner (Kanungo), being a public servant, prepared the fake/false jamabandis, outside the Court, intentionally omitted the entry of tenant (gairmaurusi) in column No.9 and subsequently produced the forged documents in Court as genuine, in order to deprive the tenant (gairmaurusi) (person interested) from his legitimate right of compensation in the acquired land. In the background of these allegations and on the basis of letter of Additional District Judge, the present case was registered against the petitioner-accused, by way of FIR No.476 dated 1.6.2010 (Annexure P1), on accusation of having committed the offences punishable under Sections 466, 471 and 167 IPC by the police of Police Station Civil Lines, Karnal, in the manner indicated here-in-above. 4. Instead of submitting to the jurisdiction of the trial Court, the petitioner straightway jumped to file the instant petition to quash the impugned FIR (Annexure P1) and all other subsequent proceedings arising therefrom, invoking the provisions of section 482 Cr.PC, inter-alia pleading that since he is not the beneficiary and entry in column No.9 was left to be written due to over sight, so, no offence is made out against him. All the essential ingredients were missing in the case. The provisions of Sections 195 and 340 Cr.PC were stated to have not been complied with and the lodging of the FIR is violative of principle of natural justice, reasonableness and non-application of mind. On the basis of aforesaid grounds, the petitioner sought to quash the impugned FIR (Annexure P1) and all other consequent proceedings arising thereto in the manner depicted herein- before. 5. The respondent-State refuted the prayer of petitioner and filed the reply, inter-alia taking certain preliminary objections of, maintainability of the petition, cause of action & locus standi of petitioner. It was claimed that during the course of investigation, the allegations contained in the FIR were found to be true & correct and after thorough investigation, the police has already submitted the challan/final police report u/s 173 Cr.PC in the trial Court. The provisions of Sections 195 and 340 Cr.PC are not applicable to the facts of the present case. Instead of reproducing the entire contents of the reply and in order to avoid repetition, suffice it to say that the respondent has reiterated the allegations contained in the impugned FIR (Annexure P1). The provisions of Sections 195 and 340 Cr.PC are not applicable to the facts of the present case. Instead of reproducing the entire contents of the reply and in order to avoid repetition, suffice it to say that the respondent has reiterated the allegations contained in the impugned FIR (Annexure P1). However, it will not be out of place to mention here that the State has stoutly denied all other allegations contained in the main petition and prayed for its dismissal. 6. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the instant petition in this context. 7. At the very outset, what cannot possibly be disputed here is that the Hon’ble Supreme Court has authoritatively held, in a celebrated judgment in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka, [2008(2) Law Herald (SC) 1119] : 2008(2) R.C.R.(Criminal) 92, that the criminal prosecution can only be quashed in rarest of rare case at the initial stage as per the following conditions:- (i) 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 entirety do not prima facie constitute any offence or make out a case against the accused. (ii) 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 S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. (iii) 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. (iv) Where, the allegations in the F.I.R. do 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 S.155(2) of the Code. (iv) Where, the allegations in the F.I.R. do 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 S.155(2) of the Code. (v) 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. (vi) 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. (vii) 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.” 8. Not only that, again the Hon’ble Apex Court in case Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R.(Criminal) 183, having interpreted the scope of section 482 Cr.PC, has ruled (para 16) as under:- “16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.” 9. Ex-facie, the arguments of learned counsel that as the petitioner has been falsely implicated in this case and all the essential ingredients of the indicated offences are missing, therefore, the impugned FIR (Annexure P1) is liable to be quashed, are not only devoid of merit but misplaced as well. 10. As is evident from the record, that the LA case, bearing No.253 of 2006 titled as “Ishwar Singh Vs. State of Haryana” was pending in the Land Acquisition Court to determine the market price and apportionment of compensation of acquired land between the parties. Ishwar Singh claimant had already produced the jamabandis for the years 1989-90 (Ex.P5) and 1994-95 (Ex.P6) on record, in which, in column No.9, one Risala son of Churia was recorded as a tenant (gairmaurusi) against payment of rent (lagan) of Rs.350/-. On the contrary, the opposite side examined petitioner Suresh Kumar, Kanungo, who has produced the already faked jamabandis (against the original record) for the same years 1994-95 (Ex.R2) and 1989-90 (Ex.R3), wherein, entry in column No.9 of tenant (gairmaurusi) against the payment of rent (lagan) of Rs.350/- was totally missing. In this manner, the petitioner has attempted to deprive the person interested, tenant (gairmaurusi) from his legitimate right of compensation in the acquired land, in order to help the other side for the reasons best known to him. 11. As soon as, the Court noticed the inherent contradictions in the jamabandis for the same years (Ex.P5), (Ex.P6), (Ex.R2) & (Ex.R3), then, it immediately summoned Parmod Kumar, Patwari as a Court witness, who brought the original record and made the statement, corroborating the entry of tenant (gairmaurusi) against the payment of rent (lagan) as contained in the jamabandis (Ex.P5 & Ex.P6), which was missing in the subsequent jamabandis of the same years (Ex.R2 & Ex.R3) produced by the petitioner. Meaning thereby, he has already prepared the false jamabandis (Ex.R2 & Ex.R3) against the relevant revenue record and subsequently produced the same in the Court as genuine. Meaning thereby, he has already prepared the false jamabandis (Ex.R2 & Ex.R3) against the relevant revenue record and subsequently produced the same in the Court as genuine. Therefore, prima facie, it stands proved on record that he has committed the indicated offences. Thus, taking into consideration the seriousness of direct allegations assigned to the petitioner that he has prepared the forged & fabricated documents and subsequently produced the same in Court as genuine, to me, no ground for quashing the impugned FIR is made out as claimed. 12. Faced with the situation, the next contention of learned counsel that since the Court has not complied with the provisions of Section 340 Cr.PC, so, the lodging of the impugned FIR (Annexure P1) is illegal, is neither tenable nor the observations of Hon’ble Supreme Court in case B.K. Gupta v. Damodar H.Bajaj & others 2010(3) RCR (Criminal) 886 and Delhi High Court in case Neeraj Sharma v. NCT of Delhi & Ors. 2009(5) RCR (Criminal) 394 are at all applicable to the facts of the present case, wherein, it was observed that “complaint can be filed against a person giving false affidavit or evidence in Court proceedings, only if, in the opinion of the Court, it is expedient in the interest of justice to do so.” It was also observed that “if the offence was committed in course of judicial proceedings, which attracted the provisions of Section 195 Cr.PC, then, the Court is required to itself hold an inquiry and to record a finding that prima facie case is made out, only then, it can make a complaint against the accused.” 13. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the petitioner in the instant controversy. 14. As discussed here-in-above, there are direct allegations against the petitioner-accused that the already faked/forged revenue record (outside the Court) was subsequently produced by him in the Court in the manner depicted here-inbefore. It is not at all the case of the prosecution that petitioner-accused has forged the jamabandis already produced on record of judicial file during the course of proceedings of the Court. Therefore, the offences committed by the petitioner squarely fall within the ambit of Sections 466, 471 and 167 IPC. It is not at all the case of the prosecution that petitioner-accused has forged the jamabandis already produced on record of judicial file during the course of proceedings of the Court. Therefore, the offences committed by the petitioner squarely fall within the ambit of Sections 466, 471 and 167 IPC. As mentioned above, since he has already obtained the faked/forged jamabandis and subsequently produced the same in Court as genuine, so, neither the bar of Section 195 Cr.PC is applicable nor the provisions of Section 340 Cr.PC are at all attracted in the obtaining circumstances of the case. This matter is no more res integra and is now well settled. 15. An identical question came to be decided by a Constitutional Bench of Hon’ble Apex Court in case Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. JT 2005 (3) SC 195, wherein, having interpreted the relevant provisions of Sections 195 & 340 Cr.PC, it was ruled that “if an offence mentioned in Section 195(1)(b) is committed after filing of documents in the Court, only then, the bar of this Section would apply and not otherwise.” The law enumerated in Iqbal Singh Marwah’s case (supra) “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. Therefore, the contrary submissions of learned counsel for petitioner-accused “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for parties. 17. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed as such. 18. Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits during the trial of the main case, as the same has been so recorded for a limited purpose of deciding the present petition in this relevant direction. ---------0.B.S.0------------