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2018 DIGILAW 1254 (GUJ)

Pradip N. Sharma v. State of Gujarat

2018-12-12

BELA M.TRIVEDI

body2018
JUDGMENT : 1. The present Criminal Misc. Application has been filed by the applicant-original accused under section 482 of the Code of Criminal Procedure seeking prayer to quash and set aside the complaint/FIR being IC. R.No.33/2011 registered with Tankara Police Station, Rajkot (Rural) for the offences under sections 409, 219 and 114 of the Indian Penal Code on 12.05.2011. 2. The short facts as culled out from the application and also from the documents on record are that the respondent no.2 complainant, who was the Mamlatdar of village Tankara at the relevant time had lodged an FIR on behalf of the State on 12.05.2011, alleging inter alia, that the Government land bearing survey No.2 admeasuring 65 acres, situated at Village Anandpara was allotted to one Shri D.J.Mehta and others on 19.05.1970 by way of Santhni for personal cultivation as per the entry made in village Form No.VI. Since, the said allottees were not staying in the village and were not cultivating the land personally, the then Deputy Collector, Morbi registering the case as Sharatbhang Case No.40/2000, forfeited the land in favour of the Government vide the order dated 15.11.2000. The said allottees/ beneficiaries in the year 2007, therefore had filed an appeal before the then Collector, Rajkot (i.e. the present applicant). In the said appeal, the then Collector i.e. the present applicant set aside the said order of the Deputy Collector and directed to restore the land in the name of the said beneficiaries-applicants vide the order dated 27.03.2008. The said order passed by the Collector was taken into revision by the Principal Secretary, Revenue (Appeals), Ahmedabad, who set aside the order of the Collector and directed to enter the name of the Government in the revenue records. According to the complainant, the applicant, who was the District Collector, Rajkot at the relevant time, had knowing fully well that the said beneficiaries/ appellants were staying abroad and not cultivating the land as per the order of allotment, and therefore were not eligible to get back the land, set aside the order passed by the Deputy Collector, with a view to unduly favour the appellants of the said Appeal and that too without verifying the genuineness of the power of attorney holder, who had filed the appeal on behalf of the legal heirs of the deceased appellants, Mr. Mehta and others. Mehta and others. Thus, the Collector (i.e. the present applicant) acting against the interest of the Government and with a view to unduly favour the appellants, had passed the order with malicious intention, and thereby had committed the offences under section 409, 219 and 114 of the Indian Penal Code. The said FIR was registered as IC. R.NO.33/2011 against the present applicant and others whose names may be disclosed during the investigation. The applicant therefore has filed the present application for quashing of the said FIR. This Court vide the order dated 22.06.2011 had issued “Rule” and granted interim relief, in terms of Para No.8(C) i.e. staying the investigation/further proceedings of the impugned FIR. 3. Learned Advocate Mr.I.H.Saiyed appearing with learned Advocate Mr.Narendra L. Jain for the applicant vehemently submitted that the complaint was maliciously filed by the respondent no.2 on behalf of the State Government, as the brother of the applicant was not in the good books of the political leaders. According to him, the police department was bent upon harassing the applicant by registering the cases one after the other against the applicant and his brother. As regards the allegations made in the complaint, he submitted that the order passed by the applicant on 27.03.2008 was taken in suomotu revision by the State Government and was set aside by the Special Secretary, Revenue Department vide order dated 14.09.2009, which order was challenged by the original appellants i.e. beneficiaries of the land by filing the Special Civil Application Nos.14996/2012 and 11111/2009. The said petitions came to be allowed by this Court vide order dated 02.09.2013, whereby the order dated 14.09.2009 passed by the Special Secretary, Revenue Department was set aside on the ground that the said petitioners were not heard in the Revision Application and in the Sharatbhang Case No.40/2000. The High Court therefore, remanded the matter to the Deputy Collector for deciding it afresh in accordance with law. He further submitted that from the bare reading of the said FIR, no prima facie case either under section 409 or under section 219 of the Indian Penal Code is made out, inasmuch as the applicant had passed the order in discharge of his duties in the quasi judicial proceedings. Mr.Saiyed also relied upon the decision of the Supreme Court in the case of Himachal Pradesh Cricket Association and Anr. Vs. State of Himachal Pradesh and Ors. Mr.Saiyed also relied upon the decision of the Supreme Court in the case of Himachal Pradesh Cricket Association and Anr. Vs. State of Himachal Pradesh and Ors. in Criminal Appeal Nos.1258 to 1259 of 2018 decided on 02.11.2018 to submit that no criminal act on the part of the applicant was made out and the allegations did not constitute any offence against the applicant. He also submitted that the persons in whose favour the applicant had passed the order have not been arraigned as the accused in the case. According to him, the impugned complaint having been filed misusing the process of law, deserves to be quashed and set aside. 4. Per contra, learned Public Prosecutor Mr.Mitesh Amin appearing with learned APP Ms.Krina Calla for the respondent no.1 State vehemently submitted that the applicant as a public servant had misused his powers and position by condoning delay of 7 years without any justification and allowed the appeal of the appellants to unduly favour them, and acted against the interest of the Government with dishonest intentions. He drew the attention of the Court to the order passed by the applicant to substantiate his submission that the said appellants/ allottees were staying abroad as transpiring from the cause title of the appeal itself, and that they had never come to India since last more than 20 years. According to him, the appeal itself was not legally tenable, however, the present applicant with a view to grant benefit to the said allottees had corruptly and maliciously passed the order allowing the said appeal and directed the Deputy Collector to transfer the land in the names of the said appellants/ allottees, though vested in Government since last many years. He also pressed into service section 405 of the Indian Penal Code to submit that there are different facets of section 405 of the Indian Penal Code and the applicant being a public servant had committed criminal breach of trust by dishonestly misappropriating government land in favour of the private persons. He also submitted that from the record of the Appeal itself it had transpired that the appellant nos.1 and 5 had already expired and the power of attorney holder had filed false verifications in the names of dead persons, however, the applicant ignoring and conniving the said vital facts had passed the order absolutely contrary to the law. He also submitted that from the record of the Appeal itself it had transpired that the appellant nos.1 and 5 had already expired and the power of attorney holder had filed false verifications in the names of dead persons, however, the applicant ignoring and conniving the said vital facts had passed the order absolutely contrary to the law. Lastly, he submitted that the said order was passed by the applicant on 27.03.2008, when he was already transferred to Bhavnagar as a Commissioner vide the notification dated 24.03.2008. 5. Mr.Amin has placed heavy reliance on the decision of the Supreme Court in the case of State of U.P. Vs. O.P.Sharma reported in (1996) 7 SCC 705 to submit that the inherent powers of the High Court under section 482 of the Code should be exercised only in exceptional cases and should not be exercised when investigation is at a very nascent stage. Reliance is also placed on the decision of the Supreme Court in the case of Dineshbhai Chandubhai Patel and Ors. Vs. State of Gujarat and Ors. reported in (2018) 3 SCC 104 , to submit that the High Court cannot appreciate the evidence, nor can draw any inference from the contents of the FIR as to whether any offence has been committed or not, more particularly, when the FIR discloses prima facie commission of cognizable offences, and in any case the investigation should not be stayed. 6. At the outset, it may be stated that the law as regards powers of the Court under section 482 of the Code to interfere with the investigation is very well settled by the Supreme Court in catena of decisions. In the case of State of W.B. Vs. Swapan Kumar Guha reported in (1982) 1 SCC 561 , it has been held as under: “21. …... the condition precedent to the commencement of investigation under section 157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. It is wrong to suppose that the police have an unfettered discretion to commence investigation under section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on ….. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.” 7. In the case of Mushtaq Ahmed Vs. Mohemmed Habibur Rehman Faizi reported in (1996) 7 SCC 440 , the Supreme Court observed as under: “4. ... According to the complaint, the respondents had thereby committed breach of trust of Government money. In support of the above allegations made in the complaint copies of the salary statements of the relevant periods were produced. In spite of the fact that the complaint and the documents annexed thereto clearly made out a, prima facie, case for cheating, breach of trust and forgery, the High Court proceeded to consider the version of the respondents given out in their petition filed under section 482, Cr.P.C. vis-a-vis that of the appellant and entered into the debatable area of deciding which of the version was true, - a course wholly impermissible.........". 8. The Supreme Court in the case of State of H.P. Vs. Pirthi Chand reported in (1996) 2 SCC 37 , while narrating the scope of powers under section 482 of the Code to be exercised by the High Court, held as under: "12. It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinize the FIR/chargesheet/ complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non- compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e. in rarest of rare cases of malafide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence - the court may embark upon the consideration thereof and exercise the power." 9. In the recent decision of the Supreme Court in the case of Dineshbhai Chandubhai Patel (Supra), held as under: “30. At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the Complainants and vis -a-versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 31. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 31. In our considered opinion, once the Court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code.” 10. In light of the aforestated legal position, if the facts of the present case are appreciated, it appears that the applicant had approached this Court for quashing of the FIR registered against him, when the investigation was at a very nascent stage. The complaint was registered on 12.05.2011 and the applicant had approached this Court on 13.06.2011. Since, the Court had granted adinterim relief staying the investigation/ further proceedings of the impugned FIR, no investigation as such has been carried out in the case. The Court therefore is of the opinion that in view of the aforestated settled legal position, the investigation should not be stayed, more particularly, when from the FIR, prima facie commission of cognizable offence is made out. 11. Though it was sought to be contended by learned Advocate Mr.Saiyed that the applicant while passing the order dated 27.03.2008 had discharged his duties and could not be said to have corruptly or maliciously passed the order as contemplated under section 219 of the Indian Penal Code, the Court does not find any substance in the same. It prima facie appears that the applicant had entertained the appeal filed by the appellants, who were the beneficiaries of the Government land admeasuring 65 acres allotted to them in Santhani for their personal cultivation, though the said appeal was filed after 7 years of the order passed by the Deputy Collector forfeiting the said land in Government, and though as per the record placed in the Appeal, the said appellants were found to be not cultivating the said land personally, as they were staying abroad and had not visited India for more than 20 years. It is also pertinent to note that as transpiring from the FIR, the applicant who was the Collector at the relevant time, had passed the order not only acting against the interest of the Government and unduly favouring the appellants, but without verifying the genuineness of the person, who posing himself as the power of attorney holder of the appellants, had filed the appeal on behalf of the appellants/ allottees, some of them had already expired at the time of filing of the Appeal. 12. From the bare reading of the said order passed by the applicant allowing the appeal of the appellants through their alleged power of attorney holder, it transpires that despite the entire record of the case and the material against the said appellants were placed by the Mamlatdar, Tankara before the applicant, he after taking note of the same, proceeded to allow the grossly time barred appeal, absolutely contrary to the settled legal position. In the opinion of the Court, no person of ordinary prudence much less an officer of the rank of Collector would pass such an order, contrary to law against the interest of the Government with a view to grant benefit to the private persons, who were found to have flagrantly violated the conditions of allotment of land in question and who were not staying in India since last many more than twenty years at the relevant time. 13. The Court also does not find any substance in the submission made by Mr.Saiyed that the said order passed by the applicant was upheld by the High Court in Special Civil Application Nos.14966/2012 and 11111/2009. As transpiring from the order dated 02.09.2013 disposing of the said Special Civil Applications, the Court had not entered into the merits of the case as the learned advocates for the petitioners of the said petitions had restricted their submissions only to the extent of violation of principles of natural justice. There is nothing in the said order to infer that the order passed by the applicant in the appeal was upheld by the High Court. There is nothing in the said order to infer that the order passed by the applicant in the appeal was upheld by the High Court. The submission of Mr.Saiyed that the persons in whose favour the applicant had allegedly passed the order have not been arraigned as the accused also does not have deserve any consideration at this stage, as the FIR is filed against the applicant-accused and others whose names may be revealed during the course of investigation. 14. The learned Public Prosecutor Mr.Amin though had submitted that the order was passed by the applicant in the Appeal unduly favouring the appellants of the said appeal, after he was already transferred from Rajkot to Bhavnagar, and that he had passed many such orders for which actions have been taken against him, the Court does not take cognizance of the said submissions in absence of material on record. 15. In that view of the matter, the Court does not find any substance in the present application. It is needless to say that observations made in this order are only prima facie observations made as the matter was argued at length on merits, however, the said observations shall not come in the way of the Investigating Officer while investigating the allegations made in the FIR independently. 16. Subject to the aforesaid clarification, the Criminal Misc. Application is dismissed. Interim relief, granted earlier, shall stand vacated forthwith. Rule is discharged. 17. The request of learned Advocate for the applicant to continue the adinterim relief, to approach the Higher Forum is rejected, in view of the legal position discussed in the order.