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2014 DIGILAW 16 (ORI)

Rudra Mohan Pradhan v. State of Orissa

2014-01-09

M.M.DAS

body2014
JUDGMENT M.M. DAS, J. - Both these applications are listed today under the hearing "To be mentioned" for clarification of certain points. Heard learned counsel for the parties. 2. These applications have been filed under Section 482 Cr.P.C. for quashing the order dated 22.03.2008 of the learned Special Judge (Vigilance), Bhubaneswar taking cognizance of the offence under Sec.13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and under Section 120B IPC and issuing process against the petitioners on the basis of the police papers/charge sheet filed by the Investigating Officer. 3. It appears that an FIR was lodged on 23.06.2004 by the Inspector of Police (Vigilance), Bhubaneswar before the Superintendent of Police (Vigilance), Bhubaneswar vide Vigilance P.S. Case No. 19 of 2004 corresponding to T.R. Case No. 28 of 2006, inter alia, alleging that a piece of land has been twice mutated by the orders passed by the petitioner in CRLMC No. 2742 of 2006 in his capacity as Additional Tahasildar, Bhubaneswar. It was alleged that the land, which was recorded in the name of one Smt. Manikmani Das in sabik Khata No. 1872/4 under sabik plot No. 246 (part), area Ac. 2.200 decimal under Mouza Bhubaneswar once recorded by the Assistant Settlement Officer, Bhubaneswar as per 1989 Settlement and, thereafter, again by the above accused, who was the Additional Tahasildar, Bhubaneswar, in a Mutation Case in favour of one D.Jagannath Rao Dora. It was further mentioned in the FIR that said Smt. Manikmani Das, wife of Sri Sashi Bhusan Das was granted lease of a piece of land by the Endowment Commissioner, Bhubaneswar in O.A. No. 9 of 1956 on 06.09.1956, to an extent of Ac. 0.200 decimals vide 1939 settlement, khata No.901, Plot No. 216 (part). During the subsequent settlement, the said land was renumbered 'as Plot No. 246 (part) under Khata No. 1878. The lessee executed a gift deed on 25.04.1968 in favour of her son-in-law Sri Radhamohan Patnaik and thereafter the said Radhamohan Patnaik sold the piece of land vide registered sale deed dated 08.11.1982 to one D.Jagannath Rao Dora. During the settlement operation, said D. Jagannath Rao Dora filed a rent case before the Assistant Settlement Officer, Bhubaneswar for recording his name in respect of the suit property on the basis of his purchase. During the settlement operation, said D. Jagannath Rao Dora filed a rent case before the Assistant Settlement Officer, Bhubaneswar for recording his name in respect of the suit property on the basis of his purchase. After following due procedure and verifying the Amin report, the Assistant Settlement Officer directed for correction of the ROR for the said land in the name of D. Jagannath Rao Dora. Accordingly, the final ROR was issued in the year 1989 by the Settlement Officer, Bhubaneswar. In 1997, it was alleged that the said D.Jagannath Rao Dora once again filed a mutation case in the Court of the Additional Tahasildar, Bhubaneswar vide Mutation Case No.6858 of 1997 and requested for necessary correction in the ROR on the basis of his purchase. His claim was that though during the settlement operation in the rent case, his name was recorded in respect of the said khata, but subsequently, by mistake, the land was recorded in the name of the G.A. Department. After registration of the mutation case, a report was called for from the R.I., who is the petitioner in CRLMC No. 548 of 2007. Basing on such report, proclamation was made as required under law and thereafter maintaining all formalities, the Additional Tahasildar, (one of the petitioners) mutated the case land in favour of said D.Jagannath Rao Dora. It is also alleged in the FIR that though in the ROR, the forcible possession note of Sri Raghunath Mishra and Bishnu Charan Mallick was reflected, but before deciding the case, no notice was served on them and ultimately, on 03.02.1998, the mutation case was allowed. On the basis of the order passed, the record keeper corrected the record on 25.04.2008. 4. Mr. Mohanty, learned senior counsel for the petitioners submits that in the meantime, the said land was made subject-matter of T.S. No.488 of 2001, which was filed by said Raghunath Mishra against the State of Orissa, Director of Estates, G.A. Department, Government of Orissa, Tahasildar, Bhubaneswar, Executive Officer, Lord Lingaraj Temple and D.Jagannath Rao Dora for declaration of permanent tenancy right over the land in question. In the said suit, an application for interim injunction was filed by the plaintiff, which was rejected. Against the said order of rejection, the plaintiff preferred F.A.O. No. 40 of 2003 before the learned District Judge, Bhubaneswar, which was also dismissed. In the said suit, an application for interim injunction was filed by the plaintiff, which was rejected. Against the said order of rejection, the plaintiff preferred F.A.O. No. 40 of 2003 before the learned District Judge, Bhubaneswar, which was also dismissed. Learned counsel for the petitioner, therefore, submits that the dispute is entirely civil in nature. The matter is pending before the competent civil Court and there is absolutely no material in support of the allegations that the offence of conspiracy under Section 120-B IPC has been committed by the accused persons. Attention of the Court is drawn to Section 40 of the Orissa Survey and Settlement Act and the decision in the case of State of Haryana and others v. Choudhury Bhajanlal and others, AIR 1992 SC 604 . Mr. Mohanty, learned senior counsel also relies upon the aforesaid decision in the case of State of Haryana and others (supra) and the provisions of the Orissa Survey and Settlement Act and submits that the Hon'ble Supreme Court in the aforesaid decision has laid down that where there is express legal bar engrafted in any of the provisions of the Code or the concerned Act, cognizance order is liable to be quashed. 5. Mr. Pani, learned counsel for the Vigilance, on the contrary, submits that in this case, after charge sheet has been filed, the witnesses have been examined and trial has commenced. He highlighted the irregularities allegedly committed by the accused-petitioner in CRLMC No. 2742 of 2006 in passing the order in the mutation case. 6. Considering the submissions made, this Court feels it appropriate to refer to Section 40 of the Orissa Survey and Settlement Act, 1958, which is as follows: "40. Protection of action taken under this Act - No suit or other legal proceedings shall lie against any person for anything in good faith done or purporting to be done under this Act or any Rule of Order made thereunder." 7. It is amply shown from the materials on record that the petitioner Rudra Mohan Pradhan in CRLMC No. 2742 of 2006 acted in accordance with the provisions of Section 34 of the Orissa Survey and Settlement Act in dealing with the mutation case in respect of which allegations have been made against him and the Revenue Inspector, Dasarathi Majhi - petitioner in CRLMC No. 548 of 2007. He has called for a report and upon verification of the same has passed the order, which is alleged to have been passed by committing criminal conspiracy. There is absolutely no material on record to prima facie show that there is a criminal conspiracy between the petitioner and D.Jagannath Rao Dora. Coupled with this fact, the averments made in the written statement filed by the Collector in T.S.No. 488 of 2001, clearly show that the matter is purely civil in nature, which is also subjudice before the civil Court. Hence, this Court finds that the order passed by the ex-Additional Tahasildar - Rudra Mohan Pradhan (petitioner in CRLMC No. 2742 of 2006) is bona fide and the protection under Section 40 of the Orissa Survey and Settlement Act squarely applies to the facts of the present case. This Court further finds that the dispute is purely civil in nature for which the criminal law should not have been set "into motion inasmuch as there is absolutely no material to show that the alleged offences have been committed by the petitioners. 8. Allowing such a criminal proceeding to continue would amount' to abuse of the process of the Court, as accepting the entire materials produced by the prosecution does not, prima facie, make out a case against the petitioners. The end result of the case would be inevitable acquittal of the petitioners. This Court, therefore, as per the settled law with regard to exercise of jurisdiction under Section 482 Cr. P.C. has no hesitation in quashing the entire proceeding. Accordingly, the order of cognizance taken by the Court below in T.R.Case No. 28 of 2006 corresponding to Bhubaneswar Vigilance P.S. Case No. 19 of 2004, which is stated to be in the stage of trial pending before the learned Special Judge (Vigilance) Bhubaneswar stands quashed. The petitioners will not be required to face the trial in the said case. 9. In the result, both the CRLMCs are allowed. CRLMCs allowed.