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Jharkhand High Court · body

2014 DIGILAW 1113 (JHR)

Asif Ekram v. State of Jharkhand through CBI

2014-11-14

R.R.PRASAD

body2014
Judgment : Heard learned counsel appearing for the petitioner and the learned counsel for the CBI. 2. This application has been filed for quashing of the entire criminal proceedings of R.C. Case No. RC 04(A) of 2010 AHD (R) as also the order dated 11/12/2012, whereby and whereunder cognizance of the offences punishable under Sections 120B, 193 and 420 of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, has been taken against the petitioner. 3. A complaint case bearing Complaint Case No. 02/2008, was lodged by the complainant before the Court of Vigilance alleging therein that two Ministers Mr. Hari Narayan Rai and Mr. Anosh Ekka have acquired huge properties by abusing their official position. The said complaint when was sent before the vigilance police station for its institution and registration, it was registered as Vigilance P.S. Case No. 26 of 2008. While the matter was being investigated by the Vigilance, an order was passed on 04/08/2010 by this Court in WP (PIL) Nos. 4700 of 2008 and 2252 of 2009, whereby the CBI was directed to take over the investigation of the said case. Accordingly, the CBI took over the investigation of the case. During investigation, it was found that Anosh Ekka has also acquired properties in the name of his wife Menon Ekka, who had filed an application before the D.C.L.R for seeking permission in terms of Section 46 of the CNT Act to purchase the land situated within Chutia Police Station. At the same time, the seller had also submitted application for having permission to sell that piece of land. Both the applications accompanied respective affidavits of the seller as well as purchaser stating therein that they do have landed property in the area situated within Chutia police station. It also accompanied a check slip wherein one of the columns seeking information as to whether purchaser does have land, was kept blank. On receiving the said applications the DCLR asked the Circle Officerthe petitioner to submit report. The Circle Officer called for a report from the Karamchari, who submitted that the purchaser does have land in the area situated within Chutia police station. The Circle Inspector by making the same endorsement submitted the report to the Circle Officerthe petitioner who by making endorsement, as forwarded and recommended, submitted its report to DCLR. The Circle Officer called for a report from the Karamchari, who submitted that the purchaser does have land in the area situated within Chutia police station. The Circle Inspector by making the same endorsement submitted the report to the Circle Officerthe petitioner who by making endorsement, as forwarded and recommended, submitted its report to DCLR. Accordingly, DCLR granted permission to the seller for selling land to Menon Ekka though Mrs Menon Ekka in fact had had no land in the area situated within Chutia police station. After completion of the investigation charge sheet was submitted against the Karamchari, Circle Inspector, Circle Officer as well as the other authorities for commission of the offences punishable under the Indian Penal Code and also under the Prevention of Corruption Act, alleging therein that the petitioner by abusing his official position put the purchaser in advantageous position and, thereby, committed offence punishable under Section 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act and also under Section 120B, 193 and 420 of the Indian Penal Code. 4. On submission of the charge sheet, when cognizance of the offences was taken by the Court, it was challenged before this Court. 5. Mr. R. Krihsna, learned counsel appearing for the petitioner submits that the petitioner being the Circle Officer, had simply forwarded the report, submitted by the Karamchari, which was endorsed by the Circle Inspector, to D.C.L.R, a competent officer to pass order in terms of the provision as contained in Section 46 (1) of the C.N.T. Act, and, thereby, he did not commit any offence either under the Prevention of Corruption Act or under the Penal Code and, hence, the Court committed illegality in taking cognizance of the offence. In this regard, it was submitted that to constitute an offence two components necessarily used to be there actus reus and mens rea. Here, since the petitioner had forwarded the report he can be said to have done the actus reus but while submitting the report he could not have any mens rea as the petitioner was having no knowledge of the fact that the purchaser was not having any land in the area situated within Chutia police station. 6. Here, since the petitioner had forwarded the report he can be said to have done the actus reus but while submitting the report he could not have any mens rea as the petitioner was having no knowledge of the fact that the purchaser was not having any land in the area situated within Chutia police station. 6. Here in the instant case the prosecution has not come forward with a case that his petitioner, in spite of having knowledge of the fact that the purchaser was not having any land in the area within Chutia police station, still he forwarded that report containing wrong fact that the purchaser was having land in that area. In absence of it the petitioner cannot be said to have committed any offence either of the I.P.C or under the Prevention of Corruption Act, particularly when the prosecution has not come forward with a case that the petitioner did it to have have undue pecuniary advantage. Under the circumstances, no criminal offence is made out. In this regard, the learned counsel has referred to a case of “C.K. Jaffer Sharief versus State through CBI [ (2013) 1 SCC 205 ].” 7. Further it was submitted that if the petitioner forwarded the report which contained incorrect fact, he cannot be held liable for any criminal offence though the petitioner may be liable administratively for such labses. 8. As against this, Mr. Khan, learned counsel appearing for the CBI by placing reliance heavily on the check list, submits that necessary column, i.e. column no. 17 seeking information as to whether purchaser do have any land situated in Chutia police station, was kept blank wherein no information had been given that the purchaser was having any land or not within that police station. Still, this petitioner being the Circle Officer, forwarded the report submitted by the Karamchari and endorsed by the Circle Inspector before the D.C.L.R by putting endorsement “forwarded and recommended” and, thereby, it can be presumed that the petitioner was having knowledge of the fact that the purchaser was having no land within Chutia Police Station and, hence, order taking cognizance never warrants to be quashed. 9. 9. Learned counsel for the CBI made an attempt to refer to the statements to the coaccused D.C.L.R to show that the petitioner was having knowledge but it was objected from the side of the petitioner by taking a plea that the said material cannot be utilized as an evidence as those statements happen to be the statements of the coaccused and it cannot be used as a legal evidence. However, Mr. Khan, learned counsel submits that the submissions, which have been advanced with regard to check list is sufficient to hold that this petitioner was having knowledge of the fact that the purchaser was having no land within Chutia police station. 10. From the submissions, advanced on behalf of the parties, it does appear that the petitioner is being prosecuted for the reason that he being the Circle Officer at the relevant point of time, had forwarded the report, submitted by the Karamchari and endorsed by the Circle Inspector stating therein that the purchaser does have land within Chutia police station, to the DCLR after putting endorsement 'forwarded and recommended' which, according to learned counsel appearing for the petitioner, does not call for for criminal prosecution as the petitioner had simply forwarded the report submitted by the Karamchari and endorsed by the Circle Inspector wherein wrong fact had been stated of which the petitioner was having no knowledge. Firstly, the stand was taken on behalf of the CBI that the petitioner despite having knowledge of the fact that the purchaser does not have any land forwarded the report to DCLR bu the CBI failed to show that the petitioner was having knowledge of the said fact. However, plea has been taken that relevant column seeking information as to whether the purchaser does have land in the said police station was kept blank it be presumed that the petitioner was having knowledge that the purchaser does not have land within the area of Chutia police station which is not acceptable in view of the fact that the report was submitted that the purchaser does have land in that area and that affidavit was also there to that effect. Thus, even if the petitioner had forwarded a wrong report, he cannot be liable to be prosecuted criminally though he may be liable to be proceeded with the departmental proceeding for administrative lapses as no evidence is there that the petitioner did it with dishonest intention to have undue pecuniary advantage. If that factum is absent, the petitioner is not liable to be prosecuted in view of the decision rendered in a case of “C.K. Jaffer Sharief versus State through CBI” (supra), wherein it has been observed in para17 that “...........If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. However, it has been said that the dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as public servant.” 11. Similar view has been taken in a case of “M. Narayanan Nambiarversus State of Kerala [ AIR 1963 SC 1116 ]”. 12. It be stated that if the petitioner would have recommended and forwarded with a knowledge that the purchaser was not having any land in that area, he would have certainly liable to be prosecuted with the criminal offence as in that event both the ingredients of a crime actus reus and mens rea would have been completed. Here, only actus reus seems to be there on the part of the petitioner but nothing is there to show that he was having mens rea also. 13. Under the circumstances, no offence whatsoever is made out under which cognizance has been taken. Accordingly, the order taking cognizance is hereby quashed. 14. In the result, this application stands allowed. Application allowed.