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2013 DIGILAW 328 (RAJ)

Abid Ali v. State of Rajasthan

2013-02-07

R.S.CHAUHAN

body2013
Hon'ble CHAUHAN, J.—The petitioners have prayed for quashing of FIR No.83/12 registered at Police Station Railway Colony, Kota City for offence under Sections 420 and 120B IPC. 2. According to the petitioners, the brief facts of the case are that the petitioner No.1 Abid Ali was working as Patwari in Patwar Circle Dadwada, Tehsil Ladpur, District Kota. The petitioner No.2 Mangi Lal Nimbel was working as Girdawar (Inspector, Land Records) in Tehsil Ladpur, District Kota. On 26.5.2010, Chaturbhuj, Ram Chandra and Ganga Ram alongwith their sisters filed an application before Abid Ali, the petitioner No.1. They claimed that they are legal heirs of one Kishna who was owner of Khasra No.202 situated at Rang Talab, Patwar Circle Dadwada, Tehsil Ladpura, District Kota. They further claimed that their father, Kishna, has expired. Therefore, the said land needs to be mutated in their name. Since the said application was not supported by any death certificate, Abid Ali asked them to furnish the death certificate. On the next date, they furnished the death certificate. Therefore, Abid Ali put a note on the mutation register recording that the Khatedar tenant has passed away and the legal heirs had filed the application. He processed the application for inquiry and appropriate orders from the concerned Tehsildar. The petitioner No.2 Mangilal Nimbel as the Inspector, Land Records, processed the application and placed it before the Tehsildar. On 22.6.2010, the Tehsildar attested the mutation entries. After mutation, Chaturbhuj and others sold the land in dispute to one Durga Shankar. Subsequently, Abid Ali discovered that Durga Shankar is too poor a person to be able to buy the land. Suspecting something amiss, he inquired into the matter. He discovered that Chaturbhuj, Ram Chandra and Ganga Ram were not the legal heirs of Kishan; that they had wrongly claimed to be his legal heirs. Therefore, he immediately informed Mangilal, the Tehsildar. The Tehsildar cancelled the mutation entries vide order dated 20.2.2011. He also cancelled the mutation entries made in favour of the subsequent purchaser, Durga Shankar. Abid Ali also requested the Tehsildar to take appropriate action against Chaturbhuj, Ram Chandra and Ganga Ram. Consequently, the Tehsildar wrote a letter to the Collector, Kota giving details of sequence of the events. Resultantly, the District Collector, Kota issued a notice to Chaturbhuj and others. 3. Abid Ali also requested the Tehsildar to take appropriate action against Chaturbhuj, Ram Chandra and Ganga Ram. Consequently, the Tehsildar wrote a letter to the Collector, Kota giving details of sequence of the events. Resultantly, the District Collector, Kota issued a notice to Chaturbhuj and others. 3. Meanwhile, one Satvendra Singh made a complaint to the District Collector, Kota alleging therein that Abid Ali alongwith others have acted illegally and have transferred a valuable land to others who were not entitled to the said land. On the basis of said complaint, an inquiry was held and it was discovered that the petitioners were negligent in carrying out their official duties. Subsequently, on the basis of inquiry, a FIR was lodged by Mr. Man Singh, SDM, Kota against the petitioners for offences under Section 420 read with Section 120B IPC. The Department has also started an inquiry against the petitioners and has suspended them from their respective posts. Hence, this petition for quashing the FIR. 4. Mr. Anurag Sharma, the learned counsel for the petitioners, has vehemently contended that according to the inquiry report, the case against the petitioners is that of negligence. There is no allegation of malafide intention, or of cheating. Therefore, no offence under Section 420 IPC is made out. Relying on the case of Ramavtar Vijay & Anr. vs. State of Rajasthan (2011(4) WLC 113), the learned counsel has contended that liability of the petitioners may be departmental, but it is certainly not a criminal one. Hence, he has prayed that the FIR should be quashed. 5. By order dated 10.12.2012, this court had called for the Investigating Officer alongwith the case-diary. Therefore, Mr. Sitaram, Circle Officer, Central Kota City is present in person alongwith the case-diary. He has submitted a summary of investigation done by the police which shall be taken on record. 6. Mr. Javed Choudhary, the learned Public Prosecutor has pleaded that the case against the petitioners is not as simple as made out by the learned counsel for the petitioners. During the course of investigation, it was discovered that the land in Khasra No.202 belonged to one Kishna S/o. Goriya who was by caste Chamaar, whereas Ganga Ram is legal heir of one Kishna S/o. Birdha, by caste Lashkari Meghwanshi. Thus, Kishna S/o. Birdha was not the owner of Khasra No.202. During the course of investigation, it was discovered that the land in Khasra No.202 belonged to one Kishna S/o. Goriya who was by caste Chamaar, whereas Ganga Ram is legal heir of one Kishna S/o. Birdha, by caste Lashkari Meghwanshi. Thus, Kishna S/o. Birdha was not the owner of Khasra No.202. Moreover, it was discovered that Kishna S/o. Goriya had died issueless, whereas Kishna S/o. Birdha had left Chaturbhuj, Gangaram, Ram Chandra and three other daughters as his legal heirs. It is Chaturbhuj, Ram Chandra and Ganga Ram and three daughters who, in collusion with the petitioners, had gotten the land of Kishna S/o. Goriya transferred in their name. It was further discovered that Abid Ali had opened the mutation No.616 without seeking markings from the Tehsildar. Similarly, Mangilal had given his approval. Moreover, when it was brought to the notice of the Tehsildar that a fraud has been played and the land could not have been transferred to Ramchandra and others, he asked Abid Ali and Mangilal to take necessary action. But they failed to do so. Even when the Tehsildar asked them to get a case registered against these persons, they refused to do so. Since neither of the petitioners were doing their duty, the Tehsildar finally invoked his powers under Section 123 of the Rajasthan Land Record Rules and Section 229 of the Rajasthan Tenancy Act and made a reference to the Collector. The Police has further discovered that Durga Shankar, who subsequently bought the land from Chaturbhuj and other, happens to be mere labourer. Thus, he was not financially strong enough to buy a land worth Rs.30 Lacs. According to the statement of Durga Shankar, he had bought the land at the behest of Shoaib Khan who happens to be the brother-in-law of Abid Ali. It was also discovered that Shoaib Khan happens to be a property dealer. It was further discovered that the employees of Shoaib Khan had enticed Gangaram, who was a resident of Suhasan Mandi in Madhya Pradesh, by promising him that he would get a large amount of money if he were do submit an application for transfer of land of Kishna S/o Goriya and would pretend that he is actually his legal heir. It was further discovered that the employees of Shoaib Khan had enticed Gangaram, who was a resident of Suhasan Mandi in Madhya Pradesh, by promising him that he would get a large amount of money if he were do submit an application for transfer of land of Kishna S/o Goriya and would pretend that he is actually his legal heir. Thus, according to the police, Shoaib Khan alongwith his employees, and the present petitioners entered into a criminal conspiracy to have the land which belonged to Kishna S/o Goriya transferred in the name of Gangaram and others. In order to fulfill their aim, according to the police, they have committed offences under Sections 467, 468, 471, 120B IPC. Lastly, according to the learned Public Prosecutor, the scope of interfering with a FIR is extremely limited. Relying on the case of State of Haryana and Others vs. Bhajan Lal and Others (1992 Supp (1) SCC 355), the learned Public Prosecutor has contended that this court should not interfere with the FIR. 7. Heard the learned counsel for the petitioner and the learned Public Prosecutor and perused the FIR as well as other documents submitted alongwith the petition and considered the summary submitted by the Police with regard to the investigation carried out by them. 8. In a series of cases, the Apex Court has held that investigation is the arena of the Police/ investigating agency. Generally, the High Court should not enter into the said arena. The High Court should take the allegations mentioned in the FIR as unrebutted facts. The High Court should see whether the allegations reveal ingredients of the offence, or not. In case they do, then the High Court should not interfere with the FIR. In case it were discovered that the allegations do not reveal the ingredients of an offence, as alleged, then the Court may quash the FIR. In the case of Bhajan Lal (supra), the Hon'ble Supreme Court has summarized the principles dealing with the quashment of FIR/criminal complainant order as under:- “1. 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 entirely do not prima facie constitute any offence or make out a case against the accused. 2. 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 entirely do not prima facie constitute any offence or make out a case against the accused. 2. 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 Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. 3. 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. 4. Where, the allegations in the FIR 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 Section 155 (2) of the Code. 5. 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. 6. 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. 7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.” 9. It is, indeed, a settled principle of criminal jurisprudence that the FIR need not be encyclopedic. The FIR reveals the basic foundation of the prose-cution case. The purpose of FIR is merely to set the criminal machinery into motion. Therefore, while interfering with the FIR and with the investigation, the court should also consider the facts discovered by the investigating agency and see if the ingredients of the offence have been revealed or not. 10. The FIR reveals the basic foundation of the prose-cution case. The purpose of FIR is merely to set the criminal machinery into motion. Therefore, while interfering with the FIR and with the investigation, the court should also consider the facts discovered by the investigating agency and see if the ingredients of the offence have been revealed or not. 10. In the present case, the allegation against the petitioners is that they have criminally conspired for mutating the land belonging to Kishna S/o. Goriya to the legal heirs of Kishna S/o. Birdha. A bare perusal of the summary of investigation submitted by the police clearly reveals that the employees of Shoaib Khan, who happens to be a relative of Abid Ali, had made an offer to Gangaram and had persuaded him to pretend that he and his family members are the legal heirs of Kishna S/o. Goriya so that the land of Kishna S/o. Goriya, namely Khasra No.202 could be transferred in the name of Gangaram and his brothers and sisters. For this purpose, a false death certificate was procured; false statements were made; documents were forged and approval of the petitioners was taken without following the procedure established by law. The allegation levelled against the present petitioner is of criminal conspiracy, an offence under Section 120B IPC. It is a matter of evidence during the trial; their involvement is an issue to be tested and adjudicated upon by the trial court. Considering the fact that the police has made eleven accused persons in the present case, it is too early to comment on the role played by the petitioners in the criminal conspiracy. 11. It is also, too, early to decide the issue whether the petitioners were merely negligent in discharging their official duties, or they were involved in criminal conspiracy hatched by other co-accused persons. This issue can be decided only after a full-fledged trial. Hence, merely because the Department has concluded that it is a case of negligence, the said conclusion cannot be accepted at the moment at its face value. Since the investigation is the prerogative of the Police, it is for the Investigating Officer to discover the truth with regard to criminal conspiracy, or negligence. 12. Since the case of Ramavtar Vijay & Anr. (supra) is distinguishable on factual matrix. Therefore, the said case does not come to the rescue of the petitioners. 13. Since the investigation is the prerogative of the Police, it is for the Investigating Officer to discover the truth with regard to criminal conspiracy, or negligence. 12. Since the case of Ramavtar Vijay & Anr. (supra) is distinguishable on factual matrix. Therefore, the said case does not come to the rescue of the petitioners. 13. For the reasons stated above, this court does not find any merit in this petition. It is, hereby, dismissed. The stay application is also dismissed.