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2013 DIGILAW 619 (JHR)

Arjun Roy @ Arjun Ram v. State of Jharkhand

2013-05-10

R.R.PRASAD

body2013
Judgment 1. Heard learned senior counsel appearing for the petitioner and learned counsel appearing for the Vigilance. 2. This application has been filed for quashing of the order dated 15/02/2010, passed in Vigilance Case No. 51 of 2002 (Special Case No. 59 of 2002) whereby and where under cognizance of the offences punishable under Sections 420, 467, 468, 469, 471, 120(B), 201, 423, 424, 477 of the Indian Penal Code and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act has been taken against the petitioner. It is the case of the prosecution that when it was detected that the Government lands are being transferred and are being mutated in the name of private person, a case was registered wherein it was alleged that one Jagarnath Singh had purchased a land measuring 21.50 acres. Having purchased that land, he filed an application before Arjun Roy @ Arjun Ram, the then Circle Officer, Kanke for opening Jamabandi in his name. Upon it, the Circle Officer as well as Deputy Collector Land Reforms, Ranchi, made recommendation for opening of Jamabandi and on such recommendation, the then S.D.O. accorded its approval and, thereby, it has been alleged that the petitioner in connivance with other accused persons including D.C.L.R. and S.D.O, committed offence of forgery as well as cheating. 3. Mr. Roy, learned senior counsel appearing for the petitioner submits that the land bearing plot no.3399 measuring an area of 23.50 acres was recorded in the last Revisional Survey Record of Right as Gairmajurwa Malik Land of Exlandlord Thakur Mahendra Nath Shahdeo of Jariya Garh Estate. The Exlandlord settled the entire land by Sada Hukumnama on 20.2.1944 to one Shankar Mahto @ Shiv Shankar Mahto and put the settlee in khas possession of the land and also issued rent receipt in his favour. The settlee Shankar Mahto @ Shiv Shankar Mahto was a settled raiyat of the village and hence, by virtue of settlement, he acquired occupancy right over the said plot. The Exlandlord had even filed return of the land in which settlee Shanka Mahto had also been shown as raiyat. 4. It was further submitted that the settlee Shankar Mahto was recognized as raiyat by the State of Bihar and hence, Jamabandi was opened in his name. The said settlee Shankar Mahto remained in possession of the land without any intervention till 1962. 4. It was further submitted that the settlee Shankar Mahto was recognized as raiyat by the State of Bihar and hence, Jamabandi was opened in his name. The said settlee Shankar Mahto remained in possession of the land without any intervention till 1962. On 7.11.1962 the original settlee transferred 21.50 acres of land out of 23.50 acres to different persons through registered sale deeds. Subsequently, those purchasers sold the land on 18.2.1964 to one Jagarnath Singh through four sale deeds. Jagarnath Singh having purchased the land, filed an application before the Circle Officer, Kanke, for mutating his name against the land which he had purchased. At that time the petitioner happened to be the Circle Officer. Upon it Mutation Case No. 38(1)/R/27/198384 was registered. After due enquiry, the Circle Officer made recommendation for mutating the name of Jagarnath Singh to the Land Reforms Deputy Collector, Ranchi, who also made recommendation and, thereupon the then S.D.O., on such recommendation, passed an order for mutating the land in the name of Jagarnath Singh and, hence, question of committing offence of misappropriation, forgery or even the offence under Section 13(1)(d) of the Prevention of Corruption Act, does not arise, still the court took cognizance of the offences as aforesaid, which is quite illegal. Mr. Shailesh, learned counsel appearing for the Vigilance submits that it is true that the land which had been recorded as Gairmajrua Malik Land belonged to the Exlandlord, who had transferred the land to four different purchasers but amongst them, Shankar Mahto was never there, still Shankar Mahto was recognized as raiyat by the State of Bihar and Jamabandi was opened in his name and therefore, any transfer made by Shankar Mahto in the name of subsequent transferee was illegal and, thereby, this petitioner committed illegality by making recommendation for mutating the name of Jagarnath Singh against the land in question. It was further submitted that earlier the petitioner had moved to this Court challenging the order taking cognizance, but this Court vide its order dated th July 2011, disposed of that writ application directing the petitioner to take all these pleas during trial and, therefore, on the same ground this application cannot be maintained as any order contrary to the order passed earlier would amount to review of its earlier order. Thus, the first question does arise as to whether this application is maintainable? Mr. Thus, the first question does arise as to whether this application is maintainable? Mr. Roy, learned senior counsel appearing for the petitioner submits that it is true that earlier the petitioner had moved to this Court whereby order taking cognizance had been challenged and that application wad disposed of giving liberty to the petitioner to raise all the points during trial. But, this application has been filed before this Court in a changed situation as after disposal of the case, case of the other coaccused was quashed by this Court after holding that the allegation made in the FIR never constitute any offence under which cognizance has been taken and that order was passed in the case of “Bindeshwari Prasad JhaversusState of Jharkhand through Vigilance & Others [W.P. (Cr.) No. 260 of 2010]” and, therefore, it is very much maintainable in view of the decision rendered in a case of “S.M.S. Pharmaceutical Ltd. Versus Neeta Bhalla & Another [ 2007 (2) Supreme 459 ]”. Almost, similar was the situation before the Hon'ble Supreme Court in a case referred to above whereby the Hon'ble Supreme Court, having taken notice of the decision rendered in a case of “Superintendent and Remembrancer of Legal Affairs, West Bengal versus Mohan Singh and Others [ (1975) 3 SCC 706 ]” was pleased to hold that when there is a changed set of circumstances, a second application under Section 482 of the Code of Criminal Procedure would be maintainable. In such situation, this application is very much maintainable as it appears that the instant application has been filed in a charged situation. Further question does arise as to whether allegation made against the petitioner in the first information report to the extent that this petitioner wrongly made recommendation for mutating the name of the person, does constitute offence of forgery or misappropriation is made out? The condition precedent for constituting offence under Sections 467, 468, 471 and 472 is forgery which gets attracted when one makes a false document (or false electronic record or part thereof) in terms of Section 464 of the Indian Penal Code. An analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories; 1. An analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories; 1. 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. 2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 3. 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 by 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 document”, if (i) he made or executed a document claiming to be someone else or authorized by someone 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. Therefore, even if the order passed by the petitioner mutating the name of he person who, according to the prosecution, were not the rightful owner, it does not constitute any offence whatsoever under Sections 467, 468, 469,471 of the Indian Penal Code as passing of any such order even an illegal order never assumes any characteristics of making a false document. So far the offence of cheating is concerned, I failed to understand as to how the alleged act constitute offence under Section 420 of the Indian Penal Code as the petitioner has never been alleged to have deceived anyone either by making a false or misleading representation or by any other action or omission, nor it is the case that the petitioner did offer any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Therefore, no offence of cheating is made out under Section 420 of the Indian Penal Code. At the same time no offence is made out under Section 424 of the Indian Penal Code as the petitioner has never been alleged to have fraudulently removed or concealed the property nor it can be a case of Section 423 of the Indian Penal Code which deals with the dishonest or fraudulent execution of deed of transfer containing false statement of consideration. So far the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is concerned, the petitioner has been alleged to have passed erroneous order which he should not have been passed , keeping in view that the land had never been transferred to Shankar Mahto by the earlier transferee but he has never been alleged to have passed the order by adopting corrupt practices or illegal means for having pecuniary advantage/valuable thing for himself or for any other person. The aforesaid essential ingredients constituting offence under Section 13(1)(d) is completely lacking as nothing could be placed to show even an iota of evidence/material of receiving pecuniary advantage and as such, one cannot be prosecuted under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, if one passes wrong order in exercise of power vested in him. Accordingly, entire criminal proceeding of Vigilance Case No.51 of 2002 (Special Case No.59 of 2002) including the order dated 15/02/2010 taking cognizance of the offence registered under Sections 420, 467, 468, 469, 471, 120(B), 201, 423, 424, 477 of the Indian Penal and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, is hereby quashed so far as this petitioner is concerned. In the result, this application stands allowed.