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2019 DIGILAW 355 (ORI)

Sailendra Kumar Samal v. State Of Odisha (Vigilance)

2019-04-25

D.DASH

body2019
JUDGMENT D. Dash, J. - The petitioner, by filing this revision, has prayed for examination of the legality and propriety of an order dated 28.07.2018 passed by the learned Special Judge, Vigilance in T.R. Case No.42 of 2017. 2. Facts necessary for the purpose are as under: Inquiry being taken up by the Vigilance Department of the State on the allegation of the corruption by the officials attached to the Office of the District Sub-Registrar, Khurda, Bhubaneswar, it came to the light that on 30.06.2011, a person, impersonating himself as Jagannath Panda, has executed a sale deed for the land measuring in total Ac.3.385 decimals to Sai Kishore Developers Private Limited, Bhubaneswar represented by its Assistant Director, namely, Akshaya Kumar Singh. The deed as such having been executed by way of impersonation, by said executant in the name of Jagannath Panda, the same has been registered on 8.7.2011 in the Office of the District Sub-Registrar, Khurda, Bhubaneswar and this petitioner was then the Sub-Registrar and has admitted the deed in question for registration. It is found that a person, in the name of Digambar Das and Raghunath Behera have stood as the identifying witnesses to the executants in the sale deed. Those two persons, though had given their address as the permanent resident of Village-Baghamari, no such person stayed in that village. In course of investigation, it has been found out that accused Simanchal Pradhan had impersonated himself as Jagannath Panda; the purported vendor in the deed; accused Kalia @ Raghunath Behera had impersonated himself as Digamber Das and had stood as a witness therein. In this way, the land belonging to Jagadananda Panda has been sold away to accused Akshaya Kumar Singh, the representative of Sai Kishore Developers Private Limited for a consideration of Rs. 8,07,750/-. It is also found that accused persons, namely, Naba Kishore Behera, and Satrughna Sethi being the brokers arranged those fake vendor and identifying witnesses with the accused Purna Chandra Sahoo being Advocates clerk coming to join in the said fraudulent activity of sale of land as the deed writer in preparing the deed and identifying the fake vendor and witnesses. The deed has been presented after the purported execution, as above described, by a fake vendor coming to stand by impersonation claiming himself to be the land owner and identified by the fake persons as witnesses. The deed has been presented after the purported execution, as above described, by a fake vendor coming to stand by impersonation claiming himself to be the land owner and identified by the fake persons as witnesses. The same has been admitted to registration by this petitioner as the then Sub-Registrar in Office. This petitioner initially at the time of registration of the case was shown as an accused along with the vendee Akshya Kumar Singh. The investigation having commenced to find out the involvement of others, after completion, charge-sheet has been submitted against six accused persons for their respective roles and this petitioner has not been named therein to face the proceeding. They are the followings: "1 Akshaya Kumar Singh:-Vendee 2.Simanchal Pradhan:-Person who is said to have impersonated himself as Jagannath Panda as executant's-Vendor 3. Raghunath Behera @ Kalia:-Identifying witness 4. Nabakishore Behera:- 5.Satrughna Sethi:- Conspirators 6.Purna Chandra Sahoo:- Charge-sheet being submitted, learned Special Judge, Vigilance on 26.9.2017, took cognizance of the offence under section 13(2) read with 13(1 )(d) of the P C.Act and section 419/420/471/120-B of the IPC against all those six named accused persons and this petitioner then came to be arraigned with those charge sheeted accused persons. Accordingly, the petitioner was also issued with the process to face the criminal proceeding. 3. This petitioner, being aggrieved by the said order, had assailed the same by invoking the jurisdiction of this Court under section 482 Cr.P.C., 1973 in CRLMC No.1830 of 2018 and finally, this Court, while disposing the same on 28.6.2018, has passed the following order: "6.In that view of the matter, there is hardly and scope for further discussion. The order dated 26.09.2017, so far as it relates issuance of process against the present petitioner is hereby quashed. The Court is quite aware that the cognizance is taken of the offences and after taking cognizance, process are issued against the accused persons. So, while not quashing the cognizance, I quash the order of issuance of process against the accused no.7-Sailendra Kumar Samal i.e. present petitioner and direct both parties to produce a certified copy of this order before the learned Special Judge (Vigilance), Bhubaneswar within fifteen working days. So, while not quashing the cognizance, I quash the order of issuance of process against the accused no.7-Sailendra Kumar Samal i.e. present petitioner and direct both parties to produce a certified copy of this order before the learned Special Judge (Vigilance), Bhubaneswar within fifteen working days. I further direct that the matter shall be re-heard by the learned Special Judge and only after hearing the parties concerned, he should pass a reasoned order as expeditiously as possible." Pursuant to the above, the matter being taken up afresh by the trial court, the impugned order has been passed wherein the petitioner has been arraigned as an accused and the process against him to face the trial has been issued. 4. Learned counsel for the petitioner submitted that this petitioner, being the Sub Registrar, has registered the deed presented for execution coming to a satisfaction at his level as required under law in course of discharge of his duty and function as the registering officer including as to the factum of the identity of the executant on the basis of the identification given by the witnesses coming out to say that they belong to the village and have personal acquaintance and knowledge about him as also that of the advocates clerk-cum-deed writer. He thus submitted that when it is not the obligation on the part of the petitioner as the Registering Officer of the document acting as to exercise of the power under the Registration Act and Rules made thereunder to make a thorough and fishing enquiry and instead to arrive at a satisfaction through the materials produced before him as to the identity of the executant's which he having arrived at in the present case, cannot be said to have committed the offence in the absence of any material to connect him directly or to draw strong inference from any such circumstances emanating from those collected materials that he had joined hands with the other accused persons at some point of time till the execution of the document and there being a meeting of mind of all and unlawful agreement for serving the particular object of getting the sale deed executed and registered in this fraudulent way to obtain a sale deed concerning the land belonging to a-person without his slightest knowledge and participation for the reasons best know. He further submitted that when the Investigating Officer had not submitted the chargesheet against the petitioner, the order of the trial court in arraigning him as an accused finding a case against him, merely for his inaction in not properly arriving at a satisfaction with regard to the identity of the executant and witnesses to that sale deed that there arises sufficient ground to proceed against him, is unsustainable. Learned Standing Counsel (Vigilance) submitted all in favour of the order. According to him, at this stage, the court below is not required to have a threadbare discussion on the material of record and when a prima facie satisfaction has been arrived at that the petitioner has not performed his duty on his part as the Registering Authority as mandated under the provisions of section 34 of the Registration Act read with Rule 66 of the Orissa Registration Rules, the same ought not to be interfered in exercise of the revisional jurisdiction. 5. Proceeding to address the submission as to the issuance of process against the petitioner, at this stage it is apposite to take note of the legal position as to issuance of process in a criminal proceeding against a person is concerned. In case of Pepsi Foods Ltd. vs. Special Judicial Magistrate, (1998) 5 SCC 749 , it has been held:- "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. XX XX XX The order of the Magistrate must reflect that he has applied his mind to the facts of the case and the law applicable thereto. XX XX XX The complaint petition, given face value and taken to be correct in its entirety, should disclose an offence instead of being found to be an abuse of the process of the Court." 6. In summoning an accused, the merits and demerits of the case are not required to be examined so also as to whether the materials collected are adequate for supporting the conviction. The evaluation of the evidence for judging its merit is not the exercise required to be undertaken. The order of issuance of summon is based upon subject to the satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. The evaluation of the evidence for judging its merit is not the exercise required to be undertaken. The order of issuance of summon is based upon subject to the satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. The court must apply its mind to the allegations in the charge-sheet and evidence produced and accordingly satisfy itself as to the sufficiency of the ground to proceed against the accused so as to issue process against him. 7. Coming to the question of exercise of the revisional jurisdiction against order of issuance of process, it is profitable to refer to the case of Amar Nath and Others vs. State of Haryana and Another, (1977) 4 SCC 137 . It has been held therein that the term "interlocutory order" in Section 397(2) Cr.P.C., 1973 denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an ..interlocutory order. In K.K. Patel and Another vs. State of Gujarat and Another, (2000) 6 SCC 195 , this Court held as under:- "11...........It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath and Others vs. State of Haryana and Another, (1977) 4 SCC 137 , Madhu Limaye vs. State of Maharashtra, (1977) 4 SCC 551 , V.C. Shukla vs. State through CBI 1980 Supp. SCC 92 and Rajendra Kumar Sitaram Pande and Others vs. Uttam and Another, (1999) 3 SCC 134 ). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code ". Whether against the order of issuance of summons under Section 204 Cr.P.C., 1973 the aggrieved party can invoke revisional jurisdiction under Section 397 Cr.P.C., 1973 has been elaborately considered by the Apex Court in Urmila Devi vs. Yudhvir Singh, (2013) 15 SCC 624 . Whether against the order of issuance of summons under Section 204 Cr.P.C., 1973 the aggrieved party can invoke revisional jurisdiction under Section 397 Cr.P.C., 1973 has been elaborately considered by the Apex Court in Urmila Devi vs. Yudhvir Singh, (2013) 15 SCC 624 . After referring to various judgments, it was held as under:- "14..........On the other hand in the decision in Rajendra Kumar Sitarm Pande and Others vs. Uttam and Another, (1999) 3 SCC 134 , this Court after referring to the earlier decisions in Amar Nath and Others vs. State of Haryana and Another, (1977) 4 SCC 137 , Madhu Limaye vs. State of Maharashtra, (1977) 4 SCC 551 and V.C. Shukla vs. State through CBI (1980) Supp. SCC 92 held as under in para 6: (Rajendra Kumar Sitaram Pande case , SCC pp. 136-37) "6. ... this Court has held that the term interlocutory order used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-section (2) of Section 397 of the Code." This decision makes it clear that an order directing issuance of process is an intermediate or quasi-final order and therefore, the revisional jurisdiction under section 397 CrPC, 1973 can be exercised against the said order. This view was subsequently reiterated in K.K Patel and Another vs. State of Gujarat and Another, (2000) 6 SCC 195 . After referring to various judgments, in Urmila Devi, the Court summarised the conclusion as under:- "21. This view was subsequently reiterated in K.K Patel and Another vs. State of Gujarat and Another, (2000) 6 SCC 195 . After referring to various judgments, in Urmila Devi, the Court summarised the conclusion as under:- "21. Having regard to the said categorical position stated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pande and Others vs. Uttam Singh and Another, (1999) 3 SCC 134 as well as the decision in K.K. Patel and Another vs. State of Gujarat and Another, (2000) 6 SCC 195 , it will be in order to state and declare the legal position as under: 21.1. The order issued by the Magistrate deciding to summon an accused in exercise of his power under sections 200 to 204 CrPC, 1973 would be an order of inter mediatory or quasi-final in nature and not interlocutory in nature. 21.2. Since the said position viz. such an order is inter-mediatory order or quasifinal order, the revisionary jurisdiction provided under Section 397, either with the District Court or with the High Court can be worked out by the aggrieved party. 21.3. Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under sections 200 to 204 CrPC, 1973 can always be subject-matter of challenge under the inherent jurisdiction of the High Court under section 482 CrPC, 1973 XX XX XX 23. Therefore, the position has now come to rest to the effect that the re-visional jurisdiction under section 397 CrPC, 1973 is available to the aggrieved party in challenging the order of the Magistrate, directing issuance of summons." In a catena of judgments, it has been held that the aggrieved party has the right to challenge the order of Magistrate directing issuance of summons. 8. Indisputably the deed in question has been presented before the petitioner, who at the relevant point of time, was working as the Sub-Registrar. It is not alleged that this petitioner, in his individual capacity, had any prior acquaintance with any of the other accused persons. It is not complained that all other formalities required for the purpose of presentation of a sale deed being executed by the so called executant have not been complied with. It is not alleged that this petitioner, in his individual capacity, had any prior acquaintance with any of the other accused persons. It is not complained that all other formalities required for the purpose of presentation of a sale deed being executed by the so called executant have not been complied with. The accused who is alleged to to have impersonated himself as the owner of the land in question, has produced the supporting documents, may be by manufacturing those. The identifying witnesses including the advocate s clerk-cum-deed writer have identified that accused, who is said to have executed the deed impersonating himself as the owner. One of these identifying witnesses is alleged to have impersonated himself. On completion of the investigation, the final conclusion of the Investigating Officer runs as under:- "During investigation, it is ascertained that the accused persons namely Sri Akshaya Kuamr Singh, S/o-Prafulla Chandra Singh, At-Guachouka, PO/PS-Delanga, Dist-Puri (Purchaser), Sri Simancahal Pradhan, S/o-Late Harihar Pradhan of Village-Goudiapada (Lembodi), PS-Ranapur, Dist-Nayagarh (fake executants), Sri Raghunath Behera @ Kalia, S/-o-Late Gangadhar Behera of Village Baghamari, PS/ Dist-Khurda (fake identifying witness), Sri Nabakishore Behera(64), S/o-Narayan Behera of village Baghamari, PS/Dist-Khurda, Sri Satrughna Sethi, S/o-Naraya Behera of village-Baghamari, PS/Dist-Khurda, Sri Satrughna Sethi, S/o-Late Panu Sethi of vill-Baghamari PS/ Dist-Khurda, Advocate Clerk Sri Purna Chandra Sahoo S/o-Late Giridhari Sahoo of Vill-Gobardharnpur PS-Dhauli Dist-Khurda conspired with one another and on pursuance of such conspiracy they executed a forged sale deed in the office of DSR, Khurda by impersonating as Jagannath Panda with a view to cheat relating to sale of a plot vide Khata No.244, Plot No.2027, 2029, 2046 area Ac.3.385 decimals of Mouza-Baghamari, PS/Dist-Khurda to in favour of Sai Kishroe Developers Pvt. Limited represented thorough its Assistant Director, Sri Akshaya Kumar Singh (46 years) S/o-Prafulla Chandra Singh of Plot No.533/ 333, Nayapalli, Bhubaneswar, PS-Nayapalli, Dist-Khorda, At/Pre-S/ o-Sri Prafulla Chandra Singh, At-Guachouka, PO/PS-Delanga, Dist-Puri. As sufficient evidence well established against the above noted private accused persons under section 467/468/419/420/120-B IPC and submitted charge sheet vide cell PS charge sheet no. As sufficient evidence well established against the above noted private accused persons under section 467/468/419/420/120-B IPC and submitted charge sheet vide cell PS charge sheet no. 19 dated 8.9.2017 against the above noted accused persons under the above section of law to stand their trial in the court of law." The court below, in view of such fraudulent practice, adopted in the matter of execution of the document and registration thereto, through those identifying witnesses again impersonating himself as somebody belonging to the village of the real owner of the land has proceeded to say that the petitioner has not performed his duty as required under section 34 of the Registration Act. Having said so, the impugned order has been passed in directing issuance of process against him to face the criminal proceeding. 9. The provision of section 34 of the Registration Act is that subject to the provisions contained in Part-VI of the Act and in sections 41, 43, 45, 69, 75, 77, 88 and 89 of the Act, no document shall be registered under the Act unless the person executing such document appears before the Registering Officer within the time allowed for presentation under sections 23,24,25 and 26 of the Act. Next provision section 35 of the Act provides that if the person/persons executing the document appears personally for the purpose of admitting the execution are not personally known to the Registering Officer, the Registering Officer is required to satisfy himself that they are the persons they represent themselves to be shown. Pursuant to the provision contained in sub-section 2 of section 69 of the Act, the relevant rule of the State of Odisha as to that aspect is Rule-66. It provides that when the Registering Officer is not personally acquainted with the executant's of a document, he shall require them to furnish the best testimony available to establish their identity and then he is to satisfy himself that the identifier is really acquainted with the person whom he proposes to identify. What he is to do for the purpose has also been provided in that rule that the identifier shall be asked to state the name and address of the person to be identified and also whether such person is really the person, he professes to identify. What he is to do for the purpose has also been provided in that rule that the identifier shall be asked to state the name and address of the person to be identified and also whether such person is really the person, he professes to identify. In an illustration thereto the rule; it has been said that respectable persons known to the registering officer or co-villagers of the executant's of apparent respectability would be accepted as suitable persons to identify the parties. The signature and thumb impression of the identifier to the endorsement on the document shall be made through electronic device. 10. In the given case, as per the prosecution case not only that the executant has impersonated himself as the owner of the land in question by representing himself to be the person having that name as that of the owner but also the identifying witness has also impersonated himself under a different name and saying to be a co-villagers of the executant's. It is not alleged that the signature and thump impression of the identifier to the endorsement on the document have not been taken. The other person involved in the process of execution of the document is the advocate s clerk-cum-deed writer. The obligation of the Registering Officer is to register the document presented to him for the purpose upon having a satisfaction about the identity of the person and factum of execution. The scope of inquiry is very limited under the Act and that too immediately at the very moment. The satisfaction that he has to arrive at, is on the basis of the version of the executant and the identifying witnesses. He is only expected to reassure himself that the document to be registered fulfils all the formalities prescribed under the Act and rules and there is no violation of those provisions governing the field. The power in my view is not even quasi-judicial but administrative in nature. He is only expected to reassure himself that the document to be registered fulfils all the formalities prescribed under the Act and rules and there is no violation of those provisions governing the field. The power in my view is not even quasi-judicial but administrative in nature. Thus, in the absence of any material presenting some doubtful features as to have appeared before the petitioner in course of performance and discharge of the duty by him as the registering authority in admitting the sale deed to registration as to the identity of the executant as also the identifying witness, which have been overlooked or ignored with oblique motive, the petitioner, as the Sub-Registrar having acted upon the version of the executant's and those identifying witnesses who are now said to have impersonated themselves even through documents created for the purpose in good faith and in course of discharge of his duty as such, in my considered view, is not liable to be proceeded with for commission of any of the offences of which cognizance has been taken. When the deed is detected to have been executed by the so called executant's impersonating himself as another and the identifying witness also has followed that path, on that basis this registering officer cannot be said to have entered into conspiracy for that act so done justifying as sufficient grounds to proceed against him for commission of offence under section 419/420/471 of the IPC and read with section 13(2) read with 13(1 )(d) of the P.C. Act. 11. For all the aforesaid, the impugned order in so far as the issuance of process against the petitioner in arraigning him as an accused is concerned is set aside. In view of the above, the case before the trial court would now proceed against the accused persons other than this petitioner, who have been so summoned. 12. The revision is accordingly disposed of.