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Jharkhand High Court · body

2014 DIGILAW 631 (JHR)

Dinesh Kumar Sinha v. State of Jharkhand

2014-05-15

R.R.PRASAD

body2014
ORDER 1. Heard learned counsel appearing for the petitioner and learned counsel appearing for the State-Vigilance. 2. This application has been filed for quashing of the entire criminal proceeding of Vigilance P.S. case no.27 of 2000 giving rise to Special Case no.14 of 2000 including the order dated 22.6.2013 whereby and whereunder learned Special Judge, Vigilance, Ranchi has taken cognizance of the offences punishable under Sections 467, 468, 471, 477A, 423, 424, 420, 109, 120B, 201 of the Indian Penal Code and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act,1988 against the petitioner. 3. Before advertising to the submission advanced on behalf of the parties, case of the prosecution needs to be taken notice of. 4. It is the case of the prosecution that 12.15 acres of land of Mouza-Kamre, appertaining to Khata No.60, Plot Nos. 1051 and 549 was belonging to ex-landlord Ka (Chaparbandi Subsequently, Kailash Nath Bharti and Baijnath Dayal Bharti who settled the land settlement) to Krishna Ballabh Narayan Singh on 16.4.1948. the said Krishna Ballabh Narayan Singh sold the land to Smt. Bameshwari Devi on 7.4.1961 through registered sale deed. Thereafter the land was mutated in her name and Jamabandi was opened in her name by the then Circle Officer. In course of time, the said land was sold to Abdul Hafeez in the year 1988 through registered sale deed. Out of the said land measuring 12.05 acres, a piece of land measuring 4.05 acres of land was sold to Neelanchal Grih Nirman Samiti, Kamre on 16.8.1988. The C.O, Kanke mutated the name of the said Samiti against the land purchased by the Samiti, vide Mutation Case No.324(R) – 27/90-91 on 28.8.1990 without verifying the factual position that the said land is Gairmajrua Malik land. 5. It has been further alleged that rest of the land was sold to Smt. Geeta Singh whose name was also mutated by the then C.O against the land purchased by her, vide Mutation case No.648(R) of 1990-91 and Jamabandi was opened in her name. Subsequently, when the Secretary of Neelanchal Grih Nirman Samiti sold the land to 18 persons including the petitioner names of the 18 persons were also mutated against the land purchased by them in the year 1991 and 1992-93. 6. Subsequently, when the Secretary of Neelanchal Grih Nirman Samiti sold the land to 18 persons including the petitioner names of the 18 persons were also mutated against the land purchased by them in the year 1991 and 1992-93. 6. On the said allegation, a case was registered against number of persons including the petitioner on the premise that the land in question was recorded as Gairmajrua Malik land and the nature of it was ‘Parti Patthal’ which was settled by the then ex-landlord to other persons on 16.4.1948, though there was prohibition of transferring of land after 1.1.1946 under the Land Reforms Act, 1950. In spite of that, this petitioner as well as other Circle Officers by misusing the official position mutated he name of the transferees against the land settled by them, though they should have initiated a proceeding under Section 4H of the Bihar Land Reforms Act. 7. On such allegation, a case was registered as Vigilance P.S. case no.27 of 2000 corresponding to Special Case No.14 of 2000. On submission of the charge sheet, cognizance of the offences was taken under Sections 467, 468, 471, 477A, 423,424, 402, 109, 120B, 201 of the Indian Penal Code and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, vide order dated 22.6.2013 which is under challenge. 8. Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioner submits that it is a case of the prosecution itself that when ex-landlord settled the land which was recorded as Gairmajrua Malik land to Krishna Ballabh Narayan Singh, his name was mutated by the then Circle Officer. Subsequently said Krishna Ballabh Narayan Singh sold the land to Smt. Bameshwari Devi on 7.4.1961 whose name was mutated against the land purchased by her and the Jamabandi was created and rent receipts were issued. When Smt. Bameshwari Devi sold the land to Abdul Hafeez, he sold the land to Neelanchal Grih Nirman Samiti whose name was mutated by the then C.O against the land purchased by it. Subsequently, the Secretary of Samiti sold the land to 18 persons including the petitioner and thereby the petitioner cannot be said to have committed any offence of forgery, misappropriation or cheating. 9. Subsequently, the Secretary of Samiti sold the land to 18 persons including the petitioner and thereby the petitioner cannot be said to have committed any offence of forgery, misappropriation or cheating. 9. It was further submitted that when the land had been recorded in the name of Bameshwari Devi and even the rent receipt had been issued much before the C.O did join and in that event, how the C.O can be said to have gone into conspiracy with other accused persons in getting the land mutated and rent receipts issued to Bameshwari Devi. 10. It was further submitted that the petitioner after noticing that the land had been recorded in the name of erstwhile transferees purchased the land from the Secretary of the Society and got his name mutated and thereby the petitioner cannot be said to have committed any offence under which cognizance has been taken and therefore, the order taking cognizance is fit to be quashed particularity when the order taking cognizance against the C.O has been quashed by this Court. 11. As against this, Mr.Shailesh, learned counsel appearing for the Vigilance submits that it is true that the land in question was recorded in the name of ex-landlord who had every right to transfer or settle the land in favour of anyone but under the Bihar Land Reforms Act, he should have transferred the land only upto 1.1.1946 whereas in the instant case, ex-landlord had initially settled the land on 16.4.1948 which was in violation of the provision of the Bihar Land Reforms Act and therefore, it can be said that the said transfer had been made in order to defeat the provision of the Bihar Land Reforms Act. In spite of that the then Circle Officer opened Jamabandi in the name of the persons to whom ex-landlord had settled the land. Likewise, the then C.O opened Jamabandi in the name of Neelanchal Grih Nirman Samiti and also in the name of the persons including the petitioner who had purchased the land from Neelanchal Grih Nirman Samiti, though he should have made recommendation for initiation of a proceeding under Section 4H of the Bihar Land Reforms Act. In such situation, the petitioner can certainly be said to have committed offences under which cognizance has been taken. 12. In such situation, the petitioner can certainly be said to have committed offences under which cognizance has been taken. 12. In the circumstances, the question does arise as to whether the allegation made in the FIR does constitute offence of cheating, forgery, misappropriation or even the offence under the Prevention of Corruption Act? 13. It has already been noticed above that the ex-landlord had settled the land to Krishna Ballabh Narayan Singh who subsequently sold the land to Bameshwari Devi whose name was mutated against the land purchased by her and the Jamabandi was opened and rent receipts were issued by her. Subsequently, she sold the land to one Abdul Hafeez who sold the land to Neelanchal Grih Nirman Samiti whose name was mutated by the then C.O who also mutated the name of the person including the petitioner who had purchased the land from Neelanchal Grih Nirman Samiti. 14. Accepting these allegations to be true one would hardly find how offence of forgery being made out. 15. In this regard, I may refer to a decision rendered in a case of Mohammed Ibrahim and others vs. State of Bihar and another [2009 (4) JLJR (SC) 75] wherein their Lordships after having regard to the provision contained in Section 470 of the Indian Penal Code as well as other provisions relating to forgery did observe as follows: “The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.” 16. It be stated that the transferor who has always been claiming the properties as his own can not be said to have committed offence of forgery by transferring the land through sale deed to different person in whose name land was mutated by the petitioner and thereby the question of committing offence of forgery by the petitioner with the aid of Section 120B never does arise. 17. 17. Going further in the matter, one can hardly conceive as to how offence under Sections 423 and 424 of the Indian Penal Code is made out when there has been no case of dishonest or fraudulent execution of deed of transfer containing false statement of consideration nor it is the case of dishonest or fraudulent removal or concealment of the property. 18. Likewise in the facts and circumstances of the case, when the petitioner having been found that the name of the transferor has already been recorded in Register II did purchase the land from Samiti and got his name mutated the petitioner can never be said to have committed offence of cheating as defined under Section 415 of the Indian Penal Code punishable under Section 420. 19. Further in the facts and circumstances, in absence of any factual fact constituting offence under Section 13(1) (d) of the Prevention of Corruption Act, the petitioner cannot be said to have committed offence under Section 13(1)(d) of the Prevention of Corruption Act. 20. Under the circumstances, entire criminal proceeding of Vigilance P.S. case no.27 of 2000 (Special Case No.14 of 2000) including the order dated 22.6.2013, taking cognizance, is hereby quashed, so far the petitioner is concerned. 21. In the result, this application stands allowed.