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2014 DIGILAW 395 (MP)

Kishorilal Vishwakarma v. State of M. P.

2014-04-07

AJIT SINGH, SUSHIL KUMAR GUPTA

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Judgment: Ajit Singh, J. 1. This common order shall govern the disposal of above mentioned criminal revisions because they involve the same issue and were heard together. Criminal Revision Nos. 2313/2013, 2119/2013 and 2389/2013 have been filed by the accused persons namely, Kishorilal Vishwakarma, Meena Mehra and Vivek Tripathi against the order dated 4.10.2013 passed in Special Case No. 6/2013 by the Special Judge, Lokayukt, Jabalpur, whereby he has framed charges under section 420/120B of the Indian Penal Code and section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. And Criminal Revision No. 331/2014 has been filed by the Special Police Establishment, Lokayukt, Jabalpur, whereby the Special Judge, Lokayukt, Jabalpur, has discharged non-applicant/accused Alok Shrivastava of the charges under section 420/120B of the of the Indian Penal Code and sections 13(1)(d) read with section 13(2) of the Prevention of Corruption Act. 2. The facts in short are these. On 20.3.1943 one Dayabai alias Phoolmati had purchased land bearing Khasra No. 30; area 0.154 hectare, situated at village Mahanadi, District Jabalpur. Indira Pastala is granddaughter of Dayabai and wife of Augustin Pastala. On 14.3.2002 Indira Pastala filed an application under section 113 of the Madhya Pradesh Land Revenue Code (in short, "the Code") for correction of Khasra entry in revenue books. Indira Pastala stated in her application that she had earlier applied for mutation of her name along with Augustin Pastala in the year 1989 which was allowed on the basis of partition deed. But when copies of Khasra entry and Rin Pustika were supplied to her, the name of Augustin Pastala was not there. Indira Pastala, therefore, prayed that the land be mutated in the joint names of Augustin Pastala and herself. The application was filed before Tahsildar Meena Mehra and she on the same date directed for its registration and publication of proclamation. Meena Mehra also called for the report of Patwari. Patwari Kishorilal Vishwakarma submitted his report on 4.4.2002 stating that the land had already been mutated in the name of Indira Pastala. It is to be noted that application of Indira Pastala was supported by the certified copy of Khasra entry of the year 1989-90 showing her name mutated. Meena Mehra by her order dated 22.4.2002 transferred the case to Tahsildar Vivek Tripathi with an observation that the land fell within his territorial jurisdiction. It is to be noted that application of Indira Pastala was supported by the certified copy of Khasra entry of the year 1989-90 showing her name mutated. Meena Mehra by her order dated 22.4.2002 transferred the case to Tahsildar Vivek Tripathi with an observation that the land fell within his territorial jurisdiction. Vivek Tripathi, however, raised a question of jurisdiction on 28.4.2002 in view of section 178 of the Code. He also directed for production of copy of the order whereby land was mutated in the name of Indira Pastala. Therefore, on 3.5.2002 an application under section 178 of the Code was filed for getting the name of Augustin Pastala recorded as co-sharer. Vivek Tripathi passed an order dated 21.5.2002 under section 178A of the Code directing recording of the names of Indira Pastala and Augustin Pastala as Bhumiswamis. Vivek Tripathi received, information that in the original Khasra entry name of Indira Pastala was not recorded. He, therefore, sought permission on 27.6.2002 from his superior officer under section 51 of the Code to review his order. And Nazul Officer Alok Shrivastava granted sanction vide order dated 10.7.2002. Vivek Tripathi thereupon vide order dated 15.7.2002 set aside his earlier order dated 21.5.2002 and directed deletion of entry, if any, made in the revenue record. 3. After about one year of the passing of order dated 15.7.2002 by Vivek Tripathi, another Patwari Lal Singh Baghel made a complaint on 27.12.2003 to the Chief Minister, Lokayukt and other officers alleging illegal mutations in revenue books including the one made in favour of Indira Pastala. On 2.1.2004 one John Bosco Richardson also made similar a complaint to the Chief Minister, Lokayukt, etc. Special Police Establishment, Lokayukt, registered P.E. No. 18/2006 on 10.8.2006 against Kishorilal Vishwakarma, Meena Mehra, Vivek Tripathi and Alok Shrivastava. After inquiry, Rajyawardhan Maheshwari, Inspector, Special Police Establishment, Lokayukt, Jabalpur, submitted his report dated 16.7.2007 wherein he opined that none of them had abused their official positions to obtain any wrongful gain and at the most they were guilty of procedural lapses or dereliction of duties. But, further inquiry was conducted by another Inspector, Special Police Establishment, Lokayukt, Jabalpur, Dewrat Mishra and he in his report stated that the matter deserved investigation against Vivek Tripathi. But, further inquiry was conducted by another Inspector, Special Police Establishment, Lokayukt, Jabalpur, Dewrat Mishra and he in his report stated that the matter deserved investigation against Vivek Tripathi. He also reported that departmental proceedings ought to be initiated against Kishorilal Vishwakarma and Meena Mehra and as regards Alok Shrivastava he stated that no case was made out. Be that as it may, first information report was registered against Kishorilal Vishwakarma, Meena Mehra, Vivek Tripathi and Alok Shrivastava for offences under section 120B/420 of the Indian Penal Code and sections 13(1)(d) and 13(2) of the Prevention of Corruption Act. All of them filed petitions for quashing of the first information report which were dismissed by a Division Bench of this High Court vide order dated 23.9.2011 on the ground that it required complete investigation. 4. The Lokayukt, after investigation and obtaining prior sanction, finally filed a charge sheet on 6.8.2013. According to the Lokayukt, accused persons entered into criminal conspiracy and in pursuance thereof, wrongly recorded the names of Indira Pastala and Augustin Pastala in revenue record. It is also alleged that on the death of grandmother Dayabai of Indira Pastala, the land fell into her share alone and no right accrued in favour of Augustin Pastala. And since Augustin Pastala was not the co-sharer, he could not have got the land mutated on the basis of any partition. The Lokayukt has alleged that a loss of Rs. 1,15,548/- by avoiding payment of stamp duty would have been caused to the Government if the land stood mutated in the name of Augustin Pastala. It is to be noted that Lokayukt did not file any charge sheet against Indira Pastala and Augustin Pastala and has given them a clean chit. 5. At the stage of framing of charge, the accused persons submitted that no loss has admittedly been caused to the State Government and in the absence of any criminality on their part, they be discharged of the offences. The accused persons also submitted that Indira Pastala in her statement has categorically stated that no money was either demanded or paid by her for the purpose of passing a favourable order on her application for mutation. The trial court, by the impugned order, agreed only with Alok Shrivastava and discharged him of the offences but framed charges as mentioned above against Kishorilal Vishwakarma, Meena Mehra, Vivek Tripathi. The trial court, by the impugned order, agreed only with Alok Shrivastava and discharged him of the offences but framed charges as mentioned above against Kishorilal Vishwakarma, Meena Mehra, Vivek Tripathi. It is in this background, the present revisions have been filed. 6. Section 13 of the Prevention of Corruption Act provides for criminal misconduct by a public servant. Such an offence of criminal misconduct can be said to have been committed if in terms of sections 13(1)(d)(i)(ii)(iii) a public servant, by corrupt or illegal means, or by abusing his position obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest. Section 13(2) provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. In C.K. Damodaran Nair v. Government of India (1997) 9 SCC 477 the Supreme Court interpreted the word "obtain" appearing in identical section 5(1)(d) of the old Prevention of Corruption Act and held that it means to secure or gain as a result of request or effort and in the case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence. 7. In the case at hand, there is not even an iota of allegation that any accused person either demanded or requested for himself/herself or any other person any valuable thing or pecuniary advantage for passing a favourable order on the application of Indira Pastala for recording her name jointly with Augustin Pastala. On the contrary, Indira Pastala in her statement has said that no money was either demanded or paid to anyone for the purposes of processing her application. She has also stated that she being the granddaughter of Dayabai in the interest of family alone, wanted the land to be mutated jointly in her name with the name of her husband Augustin Pastala. The application of Indira Pastala was supported by a certified copy of revenue entry which showed her name already mutated in the year 1989-90. She has also stated that she being the granddaughter of Dayabai in the interest of family alone, wanted the land to be mutated jointly in her name with the name of her husband Augustin Pastala. The application of Indira Pastala was supported by a certified copy of revenue entry which showed her name already mutated in the year 1989-90. The accused persons, therefore, naturally believed the averment made in the application by an aged woman, more particularly when no objection was received despite proclamation. And Vivek Tripathi bonafidely passed an order directing recording of the names of Indira Pastala and Augustin Pastala as Bhumiswamis. Later, within a month, when he received information that name of Indira Pastala never stood mutated in the original record he immediately sought permission as required under law from a higher authority to review his order. He even finally reviewed the order dated 21.5.2002 by setting it aside when permission by his superior Alok Shrivastava was granted. Meena Mehra had only directed for the registration of application of Indira Pastala and forwarded it to Vivek Tripathi because the land fell into his territorial jurisdiction. Further, as the application of Indira Pastala was supported by a certified copy of Khasra entry showing the land already mutated in her name as back as in the year 1989, Kishorilal Vishwakarma gave a favourable report for allowing the same. Though Kishorilal Vishwakarma should have been more vigilant and seen the original revenue entry before submitting his report. 8. In the fact situation of the case, it is difficult to hold that accused persons committed any criminal misconduct warranting their prosecution under section 13 of the Prevention of Corruption Act. Also error of judgment, if any, on the part of accused persons would also not amount to misconduct and cannot be equated with dishonest intention which is one of the essential ingredients for a charge of cheating under section 420 of the Indian Penal Code. On perusal of the entire charge sheet, we find absolutely no evidence against any of the accused person for framing the charges under section 420/120B of the Indian Penal Code and section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act. We accordingly discharge Kishorilal Vishwakarma, Meena Mehra and Vivek Tripathi of the charges and set aside the order dated 4.10.2013 passed by the Special Judge, Lokayukt, Jabalpur, insofar as it relates to them. We accordingly discharge Kishorilal Vishwakarma, Meena Mehra and Vivek Tripathi of the charges and set aside the order dated 4.10.2013 passed by the Special Judge, Lokayukt, Jabalpur, insofar as it relates to them. But we also affirm that part of the order by which Alok Shrivastava stands discharged. In the result Criminal Revision Nos. 2313, 2119 and 2389, all of 2013, are allowed and Criminal Revision No. 331/2014 is dismissed.