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2013 DIGILAW 878 (RAJ)

Ramdayal v. State of Rajasthan

2013-05-03

VIJAY BISHNOI

body2013
JUDGMENT 1. - The instant criminal miscellaneous petition under section 482 Cr.P.C has been preferred by the petitioner against the order dated 29.07.2009 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Bikaner (for short 'the revisional court' hereinafter) in Cr. Revision Petition No. 87/2008, whereby the learned revisional court has dismissed the revision petition filed by the petitioner against the order dated 14.02.2007 passed by the learned Judicial Magistrate No. 3, Bikaner (for short 'the trial court' hereinafter) in Cr.Regular Case No. 17/2007, whereby the learned trial court took the cognizance for the offences punishable under sections 420, 467, 468, 471 and 120-B IPC against the petitioner and three other persons. 2. Brief facts of the case are that respondent No. 2 - Om Prakash filed a written complaint before the trial court, while alleging therein that his grandfather Ramu Ram son of Thakur Ram, by caste Sunar, resident of village Loonkha was holding an agricultural land at Chak 3LKD measuring about 15 bighas. Ram Ram died issue-less on 05.05.1981 and thereafter being a legal heir of Ramu Ram, he moved an application for sanction of mutation in his name in respect of 15 bighas of above mentioned land. It was alleged in the complaint that the petitioner and the Tehsildar, Chhatargarh, Gram Panchayat Loonkha did not consider the application preferred by the respondent No. 2 for sanctioning of mutation in his name, however, sanctioned mutation No. 61 in the name of one Bajrang Lal, adopted son of Ramu Ram in the Jamabandi pertaining to the year Samwat 2054 to 2057. Thereafter, again, name of Ramu Ram was mentioned in the Jamabandi pertaining to year 2058 to 2061 but mutation No. 23 was sanctioned in the name of Hanuman Ram Jat son of Purkha Ram Jat in respect of the Khatedari land of Ramu Ram. It was also alleged that the accused persons named in the complaint have fraudulently sanctioned the mutation in the name of Bajrang Lal and thereafter in the name of Hanuman Ram and as such, committed the offences punishable under sections 420, 467, 468, 469, 471 and 120-B IPC. 3. The complaint submitted by the respondent No. 2 was forwarded under section 156(3) Cr.P.C to the police and on 12.11.2003, an FIR No. 152/2003 was registered at Police Station, Chhatargarh, District Bikaner. 3. The complaint submitted by the respondent No. 2 was forwarded under section 156(3) Cr.P.C to the police and on 12.11.2003, an FIR No. 152/2003 was registered at Police Station, Chhatargarh, District Bikaner. Police started investigation and after thorough investigation, the police filed a negative final report on 28.12.2005, while concluding that the mutations No. 61 and 23 were sanctioned in the name of Bajrang Lal and Hanuman Ram respectively as per the orders issued by the then Nayab Tehsildar and the SDM concerned and, therefore, there is no illegality in sanctioning of mutations No. 61 and 23. It is also mentioned in the police report that the litigation between the parties is pending in respect of land of deceased Ramu Ram and, therefore, the matter is of civil nature and no offence punishable under sections 420, 467, 468, 469, 471 and 120-B IPC had been committed by the persons named in the complaint. 4. Being aggrieved by the negative final report, the respondent No. 2 preferred a protest petition before the trial court and the trial court, after recording the evidence of the complainant and other persons under sections 200 and 202 Cr.P.C , took the cognizance against the petitioner and three other persons for the offences punishable under sections 420, 467, 468, 469, 471 and 120-B IPC vide order dated 14.02.2007. 5. Against the order of taking cognizance dated 14.02.2007, the petitioner preferred a revision petition, which came to be dismissed by the revisional court vide order dated 29.07.2009. Hence, this criminal misc. petition. 6. Learned counsel for the petitioner has contended that the police, after thorough investigation, concluded that the mutation entries, in favour of Bajrang Lal and Hanuman Ram, were made as per the orders of the then Nayab Tehsildar and SDM and, therefore, there was no illegality in sanctioning the mutations in favour of those persons. It is also contended by the learned counsel for the petitioner that the petitioner was not the Patwari Halka of the area concerned at the time of sanctioning of mutation No. 61 in the year 1996 and he was holding the charge of Patwari of that area in the year 2002-2003 when the mutation No. 23 was sanctioned, however, the same was also sanctioned as per the directions given by the then SDM vide letter dated 06.08.2002. It has further been contended by the learned counsel for the petitioner that the petitioner had sanctioned the mutation in the name of Hanuman Ram as per the directions given by the then SDM, Khajuwala and, therefore, it cannot be said that the petitioner has committed any offence punishable under sections 420, 467, 468, 469, 471 and 120-B IPC and otherwise also, when the mutation was sanctioned as per the directions of the higher authorities issued under the provisions of the law, it cannot be presumed that the said action of the petitioner has no nexus or is not related to some manner to his due discharge of official duties. The learned counsel for the petitioner has further contended that before taking cognizance of the aforesaid offences against the petitioner, sanction for prosecution under section 197 Cr.P.C has not been obtained from the appropriate Government and therefore, also the order of taking cognizance is liable to be set aside. 7. Per contra, the learned Public Prosecutor as well as the counsel appearing for the complainant have supported the orders impugned and contended that the learned trial court, after taking into consideration the statements of the witnesses recorded under sections 200 and 202 Cr.P.C and after looking into the complaint as well as the protest petition, rightly took the cognizance of the offences punishable under sections 420, 467, 468, 469, 471 and 120-B IPC against the petitioner and the revisional court has also not committed any illegality in dismissing the revision petition preferred by the petitioner. 8. This Court has considered the rival submissions made by the learned counsel for the parties, perused the impugned orders and also scanned through the record. 9. The respondent No. 2 preferred a complaint, while alleging that the mutation Nos. 61 and 23 were sanctioned in the name of Bajrang Lal and Hanuman Ram respectively in fraudulent manner as Bajrang Lal was never adopted by the grandfather of the petitioner and his grandfather had also not executed any will in favour of Hanuman Ram. On the said complaint, police after investigation, concluded that both the mutation Nos. 61 and 23 were sanctioned as per the directions given by the higher authorities i.e. the then Nayab Tehsildar and SDM. The orders passed by the then Nayab Tehsildar as well the SDM were taken on record by the police. The witnesses specifically stated that mutation Nos. On the said complaint, police after investigation, concluded that both the mutation Nos. 61 and 23 were sanctioned as per the directions given by the higher authorities i.e. the then Nayab Tehsildar and SDM. The orders passed by the then Nayab Tehsildar as well the SDM were taken on record by the police. The witnesses specifically stated that mutation Nos. 61 and 23 were sanctioned as per the directions given by the higher authorities. The copies of the mutations, available on the record of the police, clearly reveal that a remark to this effect is there in the mutation entries that the same has been sanctioned as per the directions given by the higher authorities i.e. the then Nayab Tehsildar as well as the SDM, Khajuwala. The mutation No. 61 was sanctioned in the year 1996 by the then Patwari Shri Thakur Singh as per the directions given by the Nayab Tehsildar and at that time, the petitioner was not the Patwari of the area and the mutation No. 61 was not sanctioned by him. However, the mutation No. 23 was sanctioned in the name of Hanuman Ram by the petitioner as per the directions given by the SDM, Khajuwala vide order dated 06.08.2002 and a remark to this effect was also mentioned in the Jamabandi and the Tehsildar Madan Singh had also confirmed this fact in his statement given before the police. In the complaint, protest petition and the statements recorded under sections 200 and 202 Cr.P.C , the complainant as well as other witnesses have failed to specify any role of the petitioner on the basis of which it can be said that the petitioner had fraudulently sanctioned the mutation in favour of Hanuman Ram on 26.12.2002, on the contrary, the material was available on record to suggest that the petitioner had sanctioned the mutation in the name of Hanuman Ram on 26.11.2002 as per the directions given by the then SDM, Khajuwala vide order dated 06.08.2002. 10. In view of the aforesaid discussions, the order dated 14.02.2007 passed by the learned trial court taking cognizance for the offences punishable under sections 420, 467, 468, 469, 471 and 120-B IPC cannot be sustained and the same deserves to be set aside. 10. In view of the aforesaid discussions, the order dated 14.02.2007 passed by the learned trial court taking cognizance for the offences punishable under sections 420, 467, 468, 469, 471 and 120-B IPC cannot be sustained and the same deserves to be set aside. There is no specific allegation of the respondent-complainant in the complaint as well as in his statement recorded under section 200 Cr.P.C against the petitioner, by which, it can be said that the petitioner has committed any offence punishable under sections 420, 467, 468, 469, 471 and 120-B IPC.Resultantly, this criminal miscellaneous petition under section 482 Cr.P.C filed by the petitioner succeeds and is allowed. Order dated 14.02.2007 passed by the trial court and the order dated 29.07.2009 passed by the revisional court are hereby set aside.Record of the trial court as well as of the revision court be sent forthwith.Petition allowed. *******