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2021 DIGILAW 641 (JK)

Jai Singh v. Baldev Raj

2021-12-04

SANJEEV KUMAR

body2021
JUDGMENT : 1. This is a revision petition by the petitioner challenging order dated 22.12.2012 passed by the Court of learned Sessions Judge, Kathua ['the trial Court'] whereby the trial Court has discharged the respondents herein in case File No. 14/Sessions under Sections 204A/467/109 RPC. 2. This petition was filed in this Court somewhere in the beginning of year 2013 and has been pending ever since. Earlier, Mr. G.S. Thakur, learned counsel represented the petitioner. However, later on, as is recorded in the order dated 28.09.2021, he made a statement before this Court that his client has taken away the brief from him. As a result, this Court put the petitioner on notice to appear in the Court. On 29.10.2021, when the case came up for consideration, this Court noticed that the petitioner had been served, but did not appear and the matter was kept awaiting for appearance of the petitioner in the interest of justice. Today also, when the case was called, neither the petitioner, nor his counsel appeared, and therefore, the matter was considered in their absence. 3. Briefly stated the facts, as are gatherable form the impugned order, are that, on 27.05.1995, the petitioner filed a complaint in the Court of learned CJM, Kathua against the respondents, fourteen in number, alleging fabrication and destruction of revenue record pertaining to land comprised in Survey Nos. 165, 166, 167, 168, 172 and 173 situate at village Chak Ram, Kathua. The allegation of mutilating and destruction of revenue record was made against the three revenue officials i.e., Baldev Raj, Subash Chander and Paras Ram. It may be noted that Baldev Raj has died during the pendency of this revision petition. The allegation was that these revenue officials in connivance with private respondents had mutilated the revenue record and a wrongful entry pertaining to kharief 1971 was made in favour of the private respondents, thus, facilitating the revenue officials to attest the mutations under Section 4 and 8 of the Agrarian Reforms Act. The CJM, Kathua took cognizance of the complaint, but postponed the issuance of process and directed an enquiry into the matter, to be made by S.P. Kathua in terms of Section 202 Cr.P.C. On receipt of enquiry report of S.P. Kathua, the CJM, Kathua issued process against the accused for offences under sections 193/204/204A/467/120/34 RPC. The CJM, Kathua took cognizance of the complaint, but postponed the issuance of process and directed an enquiry into the matter, to be made by S.P. Kathua in terms of Section 202 Cr.P.C. On receipt of enquiry report of S.P. Kathua, the CJM, Kathua issued process against the accused for offences under sections 193/204/204A/467/120/34 RPC. This was challenged by the respondents before this Court and the enquiry conducted by ASI under the directions of S.P. Kathua was set aside and the order passed by the CJM taking cognizance against the respondents was quashed and the matter remanded back for fresh consideration. 4. Pursuant to the directions of this Court, the S.P. Kathua made enquiry and submitted his report to CJM, Kathua, who, vide order dated 30.03.2003, opined that the enquiry report was lacking in details as the core issue of tampering the record had not been addressed. Accordingly, fresh enquiry report was submitted by SP Kathua on 12.07.2004 and vide order dated 13.10.2004, the CJM, Kathua took cognizance and issued process for appearance of the respondents. At the same time, CJM, Kathua committed the case to the Court of Sessions on the ground that offence under Section 467 RPC was exclusively triable by the Court of Sessions. Vide order dated 04.09.2009, the trial Court held that, prima facie, the accused had committed offences under Sections 204- A/467/109 RPC. 5. Aggrieved by the aforesaid order, the accused-respondents herein again filed a revision petition before this Court. Yet, again the respondents succeeded and the impugned order was set aside and the matter was remanded back to the trial Court to reconsider the matter in view of observations made by this Court in the order dated 11.07.2011. This is how the matter was considered afresh by the trial Court who, vide order impugned declined to proceed against the respondents. The petitioner-complainant is before this Court through the medium of instant petition to assail the order of the trial Court whereby it has discharged the respondents of mutilating and fabricating the revenue record. 6. I have heard Mr. Thakur, learned senior counsel appearing for the respondents except the deceased respondent, namely Baldev Raj, who has died during the pendency of this petition. I have also gone through the entire record including the order impugned and do not find any legal infirmity in the impugned order. 7. 6. I have heard Mr. Thakur, learned senior counsel appearing for the respondents except the deceased respondent, namely Baldev Raj, who has died during the pendency of this petition. I have also gone through the entire record including the order impugned and do not find any legal infirmity in the impugned order. 7. The trial Court has refused to take cognizance and proceed against the respondents primarily on the ground that the acts and omissions attributed to the accused-revenue officials are those performed by them in discharge of their official duties and, therefore, the Court is not competent to take cognizance, unless there is prior sanction of the Government under Section 197 of Cr.P.C. 8. The allegations levelled by the petitioner in the complaint, if believed to be true on their face value, may constitute offence of “criminal misconduct” as defined under Section 5 of the Prevention of Corruption Act and therefore, grant of sanction for prosecution by the competent Authority is sine quo non for the Criminal Court to take cognizance. The trial Court in this regard has made a reference to a communication of the Deputy Commissioner, Kathua dated 08.04.1999 sent to the Additional Secretary to Government, Revenue Department in which the Deputy Commissioner has clearly intimated that the verification of entries of kharief 1971, which are alleged to be fabricated/mutilated, was done by the Circle Officer/Naib-Tehsildar of the time and, therefore, conferring of proprietary rights under Section 4, 6 and 8 of Agrarian Reforms Act was only a consequence thereof. It was also intimated that the mutations attested on the basis of impugned entries were subject matter of challenge before the appellate forum and no such forum cancelled or set aside the mutations on the ground that these were made on the basis of fabrication or mutilation of revenue record. The trial Court has also dealt with and rejected the contention of the petitioner herein that for the offences under Prevention of Corruption Act as well as the Indian Penal Code, no prior sanction of the competent Authority for prosecution of the public officer is required. 9. The trial Court has also dealt with and rejected the contention of the petitioner herein that for the offences under Prevention of Corruption Act as well as the Indian Penal Code, no prior sanction of the competent Authority for prosecution of the public officer is required. 9. Relying upon several pronouncements of various High Courts, the trial Court has concluded that when, apart from the offences under IPC, an offence under Prevention of Corruption Act requiring prior sanction for prosecution is also made out in the charge sheet, sanction for prosecution becomes sine quo non for taking cognizance of the complaint/report. 10. Apart from what is considered and decided by the trial Court on facts and law, I have also seen that the petitioner-complainant has not alleged any conspiracy which may require prior concert or meeting of minds by the accused. It is the allegation of the petitioner that the accused and the revenue officials together hatched a conspiracy to mutilate the record so as to confer wrongful benefit on the private accused, but no specific allegation of conspiracy has been pleaded or even made out from the contents of the complaint. I am in agreement with the trial Court that it is not permissible to bypass the provisions of Prevention of Corruption Act which require sanction of Competent Authority as a condition precedent, for taking cognizance against the accused-public officers by having resort to the provisions of Penal Code as an alternative subterfuge in law. 11. From a reading of the complaint, it clearly transpires that the petitioner, after losing battle before the revenue Courts, has devised another way of waging the war by having resort to criminal litigation. 12. For the foregoing reasons, I do not find it a fit case to take a view contrary to the one taken by the trial Court. Accordingly, this revision petition is dismissed.