Bachan Singh and Others vs State of Rajasthan

G.L. Gupta, J.—This petition is directed against the order dated 30-7-1998 passed by the Addl. Chief Judicial Magistrate, Karanpur whereby he directed framing of the charge u/s 120B, 467, 468 and 199, IPC against petitioners Bachan Singh alias Ranjeet Singh, Hardeep Singh, Umed Singh and others and u/s 120B, and 199, IPC against petitioner Suba Sadiq.

Mr. Samdariya contended that Hardeep Singh was ''Panch'' and Suba Sadiq was ''Sarpanch'' and Umaid Singh was Patwari at the relevant time and as such they were public servants and could not be prosecuted without the sanction of the State Government u/s 120B, Cr.P.C. and charges could not be framed against them. His further contention was that Bachan Singh, petitioner himself is the son of Bhag Singh in whose name the land stood and he being the rightful claimant of the property, charges could not be framed against him also.

I have gone through the order of the trial Court as also the papers which have been made available by Mr. Samdariya. The facts of the case are slightly complicated. Jito D/o Bhag Singh lodged are port at Police Station Keshrisinghpura with the allegations that her father Bhag Singh was a refugee. He was allotted some 24 bighas of land in Chak S.K. Murabba No. 72, in his name and in the name of her mother Kartaro and brother Nathu Ram for which mutation entry No. 68 was made in the record. Thereafter her father, mother and brother died. She, therefore, applied for mutation in her name which was allowed on 9-2-1983 vide entry No. 72 by Gram Panchayat Malkhana Khurd. It was further stated in the F.I.R. that Jagga Singh, Basabai, Hardeep Singh, Umed Singh, Suba Sadiq and Bachan Singh entered into a criminal conspiracy and claiming that Bachan Singh was the son of Bhag Singh and that his only sister Smt. Jito had expired, got the mutation of land of Bhag Singh done in the name of Bachan Singh alias Ranjeet Singh vide entry No. 80 dated 4-5-1983. It was stated that Gram Panchayat had no power to cancel the mutation entered in her name on 9-2-1983, moreso when Ranjeet Singh is not the son of Bhag Singh, and his real name in Bachan Singh who is the son of one Jagga Singh. It was also stated that even in the electoral roll Bachan Singh has been described as son of Jagga Singh. It was further stated in the report that she (Smt. Jito) never resided in village Basir but a false certificate has been issued by Suba Sadiq that Smt. Jito d/o Bhag Singh and wife of Arjun died on 23-1-1983 whereas she was not married to Arjun. On this report, a case under Sections 420, 467, 468, 471 and 120B, IPC was registered at Police Station Keshri singhpura.

One of the accused, Gurdev Singh filed a petition in this Court u/s 482 for quashing the F.I.R. which was dismissed. Thereafter the police submitted a challan against the petitioners and others and by the impugned order the learned Magistrate framed the charges.

The first question to be considered is whether on the ground of want of sanction u/s 120B, Cr.P.C. charges should be quashed against the petitioners.

Admittedly, Bachan Singh alias Ranjeet Singh was not the public servant. Umaid Singh is only Patwari. He is not the public servant removable by the State Government and therefore, he does not have the protection of Section 120B, Cr.P.C. In this connection, Mr. Samdariya''s contention based on the case of Ram Kalyan v. Motilal 1990 (2) WLN 609 that Patwari is also protected u/s 120B, Cr.P.C. is not acceptable. The facts of that case indicate that along with the Patwari Sarpanch was also prosecuted. The petition was field only by the Sarpanch which was allowed relying on the Division Bench decision in the case of Pukhraj Vs. Ummaidram and Others, On the basis of the observations made in that case, it cannot be accepted that this Court had held that the Patwari was also protected u/s 120B, Cr.P.C. There is only reference in the judgment that one of the accused was Patwari. The matter argued before this Court was only in respect of Ram Kalyan who was Sarpanch at the relevant time On the basis of this authority, it cannot be held that cognizance of the offence against of Umed Singh, Patwari could not be taken by the Magistrate without the previous sanction of the State Government u/s 120B, Cr.P.C. for the simple reason that he is not the public servant not removable from his office save by or with the sanction of the State Government.

True it is, Hardeep Singh, being ''Panch'' and Suba Sadiq being ''Sarpanch'' were public servants by virtue of Section 78 of the Panchyat Act, 1953. This Court has held in the case of State of Orissa Vs. Prafulla Kumar Santra, that ''Sarpanch'' could be removed only by the State Government and cognizance against him on a complaint could not be taken unless there was previous sanction of the State Government. The position of the ''Panch'' is also not different. The question is whether petitioners Hardeep Singh and Suba Sadiq are entitled to claim protection u/s 120B, Cr.P.C. at this stage of the case.

The facts stated above indicate that Suba Sadiq was the Sarpanch of Gram Panchayat Basir. He issued a certificate on 23-5-1983 to the effect that Smt. Jito w/o Arjun Singh and d/o Bhag Singh had expired on 23-1-1982. At this stage of the case it cannot be said that Suba Sadiq had issued the certificate, in the discharge of his official duty on the basis of material produced before him. It is only in the course of trial when the material is produced before the Court and the Court is satisfied that Suba Sadiq had issued certificate in the discharge of his official duty on the basis of the material produced before him he can claim protection u/s 120B, Cr.P.C. For the present, the material on record shows that the first informant Smt. Jito is not wife of Arjun and she never resided in village Bashir in the territorial jurisdiction of Gram Panchayat Bashir. The Apex Court in the case of Pukhraj Vs. State of Rajasthan and Another, has held that Section 120B, Cr.P.C. does not apply to acts done purely in a private capacity by a public servant. Approving the observations in the case of Sarjoo Prasad v. King Emperor 1945 FCR 227 : 47 Cri LJ 838 and previous decision of the Apex Court their lordships held as follows at page 1797 Cri LJ 1973 :-

Mere fact that the accused proposes to raise a defence of the act having purported to be done in execution of duty would not in itself, be sufficient to justify the case being thrown out for want of sanction. At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to be in purported execution of his duty. But facts subsequently coming to light during the course of the judicial inquiry or during the course the prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the course of the progress of the case (see observations in Matajog Dobey Vs. H.C. Bhari, Bhagwan Prasad Srivastava Vs. N.P. Mishra, also it was pointed out that it would be open to the appellant (the 2nd respondent in this case) to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of where so inter related with his official duty so as to attract the protection afforded by Section 120B, Cr.P.C.

In view of the peculiar facts of the instant case, it is not possible to throw away the case for the prosecution against Suba Sadiq at this stage on the ground that the sanction of the State Government was not obtained u/s 120B, Cr.P.C. If the necessity of the sanction is revealed in the course of the progress of the case, the trial Court would be free to pass appropriate order.

Hardeep Singh was ''Panch'' of Gram Panchayat Malkhana Khurd. The Gram Panchayat has got jurisdiction to record mutation by virtue of Government notification dated 30-9-1982. A reading of the notification reveals that the Gram Panchayat is not invested with the power of deciding disputed cases. Sub-section (1) of Section 135 of the Land Revenue Act empowers the Tehsildars to decide cases of mutation, where there is no dispute. Sub-section (1) of Section 135 is reproduced hereunder :-

135 Procedure on report (1) The Tehsildar, on receiving such report or upon the fact coming otherwise to his knowledge , shall make such inquiry as appears necessary and in undisputed cases, if the succession or transfer or other acquisition appears to have taken place, shall record the same in the annual registers.

xx xx xx xx xx

It is obvious that only those cases in which there is no dispute as to the succession or transfer or otherwise mutation can be recorded by the Tehsildars. The same power was conferred on the Gram Panchayats vide Government notification dated 30-9-1982. It is provided in the notification that the application made to Tehsildar shall be forwarded to the Gram Panchayat who shall decide the application within 45 days from the date of its receipt. It has not come on record whether Bachan Singh alias Ranjeet Singh had filed application before the Tehsildar for cancellation of the mutation made in favour of the first informant and record the same in his favour and if the Tehsildar had forwarded his application to the Gram Panchayat for disposal. As a matter of fact the application could not be forwarded by the Tehsildar to the Gram Panchayat as mutation had be made in favour of the first informant only 3 months before and as such it was not a case of undisputed nature.

At this stage of the case it, cannot be accepted that the Gram Panchayat was empowered to deal with the application of Bachan Singh alias Ranjeet Singh to cancel the mutation made in favour of the first informant and make entry in his favour. As such, at this stage, it cannot be held that the petitioner had acted in the discharge of his duty as Panch when he ordered the mutation of the land in favour of Bachan Singh. If at the subsequent stage of the case it is borne out that the petitioner had acted in relation to his duty, he may claim protection. Moreover, the Apex Court in the case of Shambhoo Nath Misra Vs. State of U.P. and others, has held that fabrication of record or preparation of false record does not come within the official duty of the public servants. As such it cannot be held at this stage of the case that the petitioner could not be prosecuted without sanction of the State Government.

Even on merits, I do not find any cause to interfere in the order of the Magistrate. The facts appearing on record make out a case of serious nature as there are allegations of impersonation and forgery. There is prima facie material on record to frame charges against the petitioners. It is not borne out that there is abuse of the process of the court and interference by this Court is warranted to serve the ends of justice.

For the reasons stated above there is no merit in this petition which is hereby dismissed, It is made clear that the trial Court shall not be influenced by observations made in this order. It shall be free to take its decision on the evidence produced before it.