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2013 DIGILAW 316 (UTT)

SEVITAM PANDEY v. STATE OF UTTARAKHAND

2013-06-12

U.C.DHYANI

body2013
JUDGMENT Hon’ble U.C. Dhyani, J. (oral) The applicant, by means of present application /petition under Section 482 of Cr.P.C., seeks to quash the chargesheet dated 19.12.2006, submitted in case crime no. 3542 of 2006, under Sections 420, 465, 468, 177, 166, 167, 120B of IPC as also the entire proceedings in criminal case no. 611 of 2007, State vs Neeraj Joshi and others, in respect of selfsame offences, pending before the court of Chief Judicial Magistrate, Udham Singh Nagar. 2. An FIR was lodged by respondent no. 2, who was Sr. Administrative Officer in District Office, Udham Singh Nagar on 28.09.2006, in police station Rudrapur against six accused persons, including the present applicant in respect of offences punishable under Sections 420, 465, 467, 468, 471, 177, 166, 167 and 120B of IPC Accused no. 6 Smt. Jiwanti Sah has died, in whose name the freehold was done by the Nagar Palika, Rudrapur. Accused nos. 1 to 3 and 5 are not the applicants in this application under Section 482 of Cr.P.C. 3. Applicant Sevitam Pandey was posted as Junior Engineer, Regulated Area Rudrapur in District Udham Singh Nagar w.e.f. June 1999 to July 2005. It was a policy decision taken on 01.12.1998 by the erstwhile State of Uttar Pradesh, to convert nazul land into freehold on certain conditions. Accused no. 6 Jiwanti Sah (since deceased) applied for freehold rights in the year 1998. In other words, she applied for freehold of her nazul land in which she was already in possession, as per the policy dated 01.12.1998 of the State Government. Smt. Jiwanti Sah deposited a sum of Rs. 3 lacs for converting her lease into freehold land. A.D.M., Udham Singh Nagar, on receipt of application for conversion of nazul land into freehold, sought certain queries from the Town Planner, which is an authority created under U.P. Regulation of Building Operations Act, 1958. According to the letter no. 61/25–Nazul dated 15.01.1999, a query was sought that conversion of land leased for agricultural purposes could only be converted into freehold when at the relevant point of time it was used for residential purpose under the Master Plan. In response to letter dated 15.01.1999, the Town Planner submitted his report that the land leased out to Smt. Jiwanti Sah was an open land used for agricultural purposes. In response to letter dated 15.01.1999, the Town Planner submitted his report that the land leased out to Smt. Jiwanti Sah was an open land used for agricultural purposes. Plot No. 3 20 leased out to Jiwanti Sah is part and parcel of the land which was demarcated under the Master Plan of 1972 and was shown to be semi populated abadi area. Some part of the aforesaid land was also covered under green belt area adjoining river Begul. 4. The sum and substance of the complaint filed on behalf of the District Officer, Udham Singh Nagar was that the applicant alongwith other officers acted malafide. They prepared a forged report for giving undue advantage to Smt. Jiwanti Sah. The object was to convert the leasehold land of Jiwanti Sah into freehold land. It was also the allegation against the applicant alongwith other accused persons that the land in question was infact an agricultural land and the applicant alongwith other officers (accused persons), deliberately gave a wrong report to the effect that the same was for residential use. 5. It is the submission of learned counsel for the applicant that when in the year 1972 itself, the land was shown to be a semi populated abadi area in view of subsequent directions issued under the Policy of 01.12.1998, there was no restriction on its conversion. It was also submitted that one of the question which was answered by the State Government in Nazul Directorate provided that even the agricultural land which fell or was being used for residential purpose under the Master Plan could be converted into freehold. The only exception to such conversion was the land required for expansion of road or other public purpose. 6. The State Government vide GO dated 23.12.1999 also clarified the earlier GO dated 25.01.1999 which provided that freehold conversion can be granted to the land leased for agricultural or horticultural purposes. When the conversion deed was executed in favour of Smt. Jiwanti Sah on 06.03.2006 by the District Magistrate, Udham Singh Nagar, the Master Plan of 1972 was in existence. The applicant and two other officers, were members of the committee constituted for the purpose of giving a report whether the land could be converted into freehold or not? When the conversion deed was executed in favour of Smt. Jiwanti Sah on 06.03.2006 by the District Magistrate, Udham Singh Nagar, the Master Plan of 1972 was in existence. The applicant and two other officers, were members of the committee constituted for the purpose of giving a report whether the land could be converted into freehold or not? On the report submitted by the applicant alongwith two officers, a demand notice was issued to Smt. Jiwanti Sah quantifying the amount to be paid by her in favour of the Government. The demand notice was not complied with by the leaseholder Smt. Jiwanti Sah. The State Government subsequently suspended the process of conversion of nazul land into freehold as contemplated by the policy of conversion dated 01.12.1998. 7. Learned counsel for the applicant also contended that when the report was submitted by the applicant on 10.04.2000, a report to the same effect was given by the Dy. Collector, Rudrapur on 21.05.2000. Even if the contents of the FIR were presumed to be correct on it’s face value, no prima facie offence is made out against the accused-applicant. 8. Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. Those principles can be summarised as follows: 1. Though there are no limits of the powers of the Court under Section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 2. The court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basis ingredients of a criminal offence are not satisfied then the court may interfere. 3. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basis ingredients of a criminal offence are not satisfied then the court may interfere. 3. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. 4. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 5. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 6. Where there is an express legal bar enacted in any provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 7. The court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 8. The process of the court cannot be permitted to be used for an oblique or ultimate / ulterior purpose. 9. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. 10. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and do not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of he evidence. 11. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 12. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 13. In exercise of its jurisdiction under Section 228 and/or under Section 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The court has to consider the record and documents annexed with by the prosecution. 14. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 15. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 15. Where the charge-sheet, report under Section 173(2) CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 16. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exists. 9. As has been said earlier that no prima facie offence was made out against the accused-applicant, even if the contents of the FIR were presumed to be correct on its face value. The elements of cheating, forgery etc. as alleged against the present applicant were missing from the word ‘go’. Such ingredients were conspicuous by their absence. There is nothing on record even prima facie, to suggest that the accused-applicant acted malafide and he wanted to give undue favour to the leaseholder Smt. Jiwanti Sah. Even the same report which was given by the applicant was ratified by the Deputy Collector. The District Administration, inspite of lodging an FIR against the present applicant, should have sought the explanation of the applicant and if necessary, would have initiated departmental proceedings against the wrong doer. Adopting the course of FIR in such a situation was not proper. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. There was no substantial compliance with the requirements of the offence in the instant case. 10. The High Courts should not unduly interfere. There was no substantial compliance with the requirements of the offence in the instant case. 10. The High Courts should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not, but if the allegations are so patently absurd and inherently improper that no prudent person can ever reach such a conclusion and where the basic ingredients of an offence are not satisfied the court may interfere. The instant case was, at the best, a case of initiation of departmental proceedings against the erring officials/delinquents. Resorting to the provisions of Section 154 of Cr.P.C., in such a situation, was ill advised. Although inherent jurisdiction under Section 482 of Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself, but the instant case appears to be one such case in which the Court should step in to prevent abuse of the process of Court atleast in respect of present applicant. 11. The application/petition under Section 482 of Cr.P.C. is therefore allowed. The chargesheet dated 19.12.2006, submitted in case crime no. 3542 of 2006, under Sections 420, 465, 468, 177, 166, 167, 120B of IPC as also the entire proceedings of criminal case no. 611 of 2007, State vs Neeraj Joshi and others, in respect of selfsame offences, pending before the court of Chief Judicial Magistrate, Udham Singh Nagar are hereby quashed so far as the same relates to present applicant only.