Brajendra Sharma And Another vs Hussain Khan And Others

The applicants preferred this revision, under sections 397 r.w section 401 of the Cr.P.C. challenging the order dated 06.02.2018, whereby the learned

1st ASJ, Jatara, District Tikamgarh, has framed the charges under sections 466/120-B, 420/120-B, 468, 467, 4761 of the IPC against the applicants in

Sessions Trial No.50/2017.

Bereft of the unnecessary details facts requisite for disposal of the revision are that, respondent No.1 Hussain Khan has filed a criminal complaint

against the applicants Brajendra Sharma (the then ‘Patwari’), applicant No.2 Lekh Raj Singh (the then Patwari) and other five accused persons

namely accused No.3 Dhaniram (the then reader), accused No.4 M.M. Pandey, (the then Sub-registrar) and accused No.5 Shyama Bai Gupta

allegedly impersonated herself as Johra Bi the sister of Hussain Khan.

Accused No.6 Ram Gopal, an advocate by profession and purchaser of land and accused No.6 Lekhraj Singh second purchaser of the land. The

criminal complaint has been lodged for offences under sections 420, 467, 468 and 471 of the IPC. It is alleged that Hussain Khan, earning his

livelihood by doing the tailoring work. The complainant Hussain Khan and his sister Hajra Begum are son and daughter of Ramjan. Ramjan Khan died

on 28.8.1991 and Hajra Begum died on 9.12.1992.

The health of Ramjzan was not good. The accused persons Ram Gopal (accused No.6) and Lekh Raj Singh (accused No.7) hatched a criminal

conspiracy with the applicants No.1 and 2 namely Brajendra Sharma and Satyanarayan Singh, accused No.3 Dhaniram Ahirwar in life time of

Ramzan, showing himself to be dead on 5.6.1991 and made entries in the revenue records, showing his L.Rs. to be Firoz Khan, Hussain Khan,

Anchahai Bi and daughter Hajra Begum in the revenue records. Khasra Nos.933, 935, 938, 941, 945, 947, 948, 942 and 950 area 3.408 hectare

situated at village Uprara, Tahsil Palera, (earlier Tahsil Jatara), which was owned by Ramjan. Ramzan was alive on 5.6.1991 and he died on

28.8.1991.

It is further alleged that on 05.06.1991 by mutation No.32, the names were mutated. It is claimed that the then Patwari Satyanarayan Singh

(applicant No.2) has mutated the revenue record on 24.8.1991. The names were mutated without giving any notice to anyone and name of Hazra

Begum was entered in the records and separate Bhu-Adhikar Pustika and Rin-Pustika were issued by applicant No.1 Brajendra Sharma without the

presence of Hazra Begum. Accused No.5 Shyama Bai Gupta impersonated herself as Hazra Begum and signed the documents. On the basis of

which, on 30.9.1992 the sale deed was executed in favour of accused Nos.6 and 7 namely Ram Gopal and Lekhraj Singh. The sale deed was

registered by accused No.4 M.M. Pandey (the then Sub-registrar). Because of conspiracy, the sale deed was executed in the name of accused Nos.6

and 7 namely Ramgopal and Lekhraj Singh. Other accused persons with connivance of present applicants conspired to execute the sale deed, which

was false and fabricated. Dhaniram Ahirwar (accused No.3), who was reader of Tahsidar at the relevant time knew all the things and acted in

conspiracy with other accused persons and order sheet dated 23.12.1992 was drawn, wherein it is apparent that without issuing notice to other parties,

shown them to be ex-party. Therefore, offence was committed. It is claimed that the complaint was made to police but no action was initiated against

the accused persons. Hence, the respondent No.1 Hussain Khan filed a criminal complaint. He further contended that applicants, the then Patwaries,

accused Nos.1 and 2 Brajendra Sharma and Satya Narayan Singh, Dhaniram Ahirwar (accused No.3) reader of Tahsildar and M.M. Pandey

(accused No.4), Sub-registrar were government officials, who committed the offence. Therefore, permission was sought for from the Collector to

initiate criminal proceeding against them, but no order was passed in this regard. Therefore, the complainant has filed criminal complaint without prior

sanction for prosecution.

After recording preliminary evidence under sections 200 and 202 of the Cr.P.C., learned JMFC, Jatara had taken cognizance of the offences and

before charge evidence has been recorded. Subsequently, before charge evidence recorded on 28.10.2016, case was committed to the Court of

Sessions in the light of amendments made on 14.2.2008.

Learned Additional Sessions Judge, Jatara framed the charges against the applicants on 6.2.2018 as mentioned above.

On behalf of the applicants, the same has been challenged on several grounds. The main contention of the applicants is that the applicant No.1

Brajendra Sharma, (the then Patwari) has retired and now he is a pensioner. The applicant No.2 Satyanarayan Singh (the then Patwari) at present, is

serving as Nayab Tahslidar. They have acted bonafidely on the basis of documents provided to them. Therefore, whatever, they did was done in

discharge their official duty. Therefore, they are safeguards under section 197 of the Cr.P.C. As no sanction has been granted for prosecuting against

the applicants, hence they pray for quashing the charges framed against them.

It is also contended by the applicants that, the dispute is basically a civil dispute, which has been coloured to be a criminal case. It is also contended

that the complainant Hussain Khan filed Civil Suit No.55-A/1999 before District Judge, Tikamgarh impleading the applicants and other accused

persons as defendants and seeking relief for injunction and declaring the sale deed dated 30.09.1992, null and void. This civil suit was decided on

15.2.2000.

The applicants further claimed that the complaint case was filed on 31.5.2002 and case was committed to the Sessions Court on 28.10.2016, which

is delayed by 13 years. The applicants are facing trial for such a long period, which is violation of Article 229 of the Constitution of India. It is also

contended that the applicants are entitled for discharge on the grounds that the charges have been framed against the applicants on the basis of

evidence collected by the Magistrate and not by the Sessions Court or the Police.

Learned counsel for the respondents has opposed the contentions and submitted that the signature of Hazira Begum has been compared and

expert has stated that it is not the signature of Hazra Begum. Therefore, the document (sale deed) is forged one. Every criminal case has a civil

texture, that does not mean that the applicants are entitled for discharge. It is also contended that, in the life time of Ramjan showing him to be dead

mutation was done with conspiracy along with other accused persons and subsequently, after projecting Smt. Shyama Bai who impersonated herself

as Hajra Bi, the sale deed was executed, and acted upon by the applicants knowing that it to be a forged one. Therefore, the applicants are

responsible for the commission of offence. During the course of arguments, it is also contended that 24 criminal cases have been registered against

the applicant Brajendra Sharma. The alleged delay has not been caused by the complainant, whatever delay has been caused due to procedure

adopted by the Court. It is not on account of the complainant. Reply to the arguments of protection under section 197 of the Cr.P.C., the respondent

No.1 has submitted that, no permission is required for prosecution for commission of offences under sections 467, 468, 471 because it does not fall in

the category of official duty.

On the aforesaid rival contentions, this Court deem it proper to analyze the case on the following points:-

(A ) Civil Nature:-Though, the main dispute is about the land in question, but the mutation as well as sale deed executed said to be executed by

committing fraud. On behalf of the applicants, reliance has been placed in the case of Inder Mohan Goswami and another Vs. State of Uttaranchal

and others AIR 2008 SC 251, wherein it is held that:-

“In civil dispute, institution of criminal proceeding under sections 420, 120-B and 467 of the IPC against vendor an abuse of process of Court.â€​

In criminal cases, the intention is an essential ingredient. It has to be shown that the accused had fraudulent or dishonest intention at the time of

making promises. In life time of Ramjan, his property was mutated among his children. In place of Hajra Begum (sister of complainant), Shymabai

Gupta was impersonated as Hajra Begum and executed the sale deed. Therefore, it is not a simple breach of contract or breach of performance the

contract. Therefore, when the documents allegedly prepared fraudulently or dishonestly, it reflects the intention. Therefore, it is not a civil dispute

simpliciter.

In this regard, on behalf of the petitioner, reliance has been placed in case of Ramdev Food Products Vs. State of Gujrat, 2015 AIR SCW 2058

wherein the Apex Court has held that, when case primarily is of civil nature, action of Magistrate in directing for report under section 202 instead of

direction for investigation under section 156(3) was held proper. Therefore, the citation is of no avail to the applicants.

(B) Delay:-As regarding the points raised by the applicants that the complaint has been filed delayed by 13 years. It would be appropriate to note that

the alleged mutation took place on 05.06.1999 and registered sale deed was executed on 01.10.1992. For offence under section 467, the maximum

period of punishment prescribed is imprisonment for life or imprisonment for ten years. The limitation for taking cognizance of any offence is

prescribed in section 468 of the Cr.P.C. which provides as under:-

Bar to taking cognizance after lapse of the period of limitation.

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2),

after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

[(3)Â For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference

to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]

On behalf of the applicants, reliance has been placed in case of Sirajul and others Vs. State of Uttar Pradesh and another, 2015 AIR SCW 4010, in

which the Apex Court has considered that the case which was a cross case run simultaneously for 16 years. Having regard to the nature of allegation

and entirety of circumstances, complaint was quashed holding that criminal case not covered by statutory bar of limitation under section 468, can be

quashed on the grounds of violation of rights of speedy trial.

On due consideration of rival submissions, it can be said that the case covered by statutory bar of limitation may be liable to be quashed without any

further enquiry. Case could not cover by statutory bar, can be considered on the ground of delay in filing of criminal complaint in appropriate cases. In

case of Hussainara Khatoon Vs. State of Bihar (1980) 1 SCC 81, the Apex Court has observed that Article 21 confers a fundamental right on every

person not to be deprived of his life or liberty, except according to procedure established by law; that such procedure is not some semblance of a

procedure but the procedure should be reasonable, fair and just; and therefrom flows, without doubt, the right to speedy trial.

No procedure which does not ensure a reasonable quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21. Keeping in

view that this criminal complaint case travelled in three different stages and because of the amendment in the Code of Criminal Procedure

in the year 2016, it was committed to the Court of Sessions. The Court can be held to be diligent in trying the case, though speedy and public trial a

constitutional guarantee, the Court cannot be oblivious because of the complexity of the case, the manner of prove as well as gravity of the alleged

crime procedure can be stopped or quashed. Though, a direction can be issued to the trial Court to expedite the matter. Therefore, it would not be

appropriate to set aside the order impugned on the ground of delay. Therefore, no limitation is prescribed for offence punishable for more than three

years. Hence, it cannot be said that the complaint is barred by limitation.

No doubt, the complaint has been filed on 31.5.2002 after about ten years and subsequently, it took almost 14 years for the Magisterial Court to

commit the case to the Sessions Court. The procedure adopted for committal of the case was lengthy. It would be appropriate to consider the

limitation period prescribed is only for filing of the complaint and not for initiation of the prosecution and not for taking cognizance. The complaint was

filed within limitation period cannot be made infructuous by act of the Court; namely by taking cognizance after expiry of limitation period. After taking

of cognizance, learned trial Court has committed the case to the Court of Sessions, having considered the amendment made in the Code of Criminal

Procedure, whereby the offence under section 467 has been converted from warrant trial to “Sessions Trialâ€. Under these circumstances, the

complaint case cannot be quashed purely on the ground of delay.

(C) Framing of charge:- So far as the preliminary evidence is concerned, earlier evidence was recorded before the learned JMFC and on the basis of

which, the Sessions trial is in progress. It would not be exaggerated to mention here that in a complaint case exclusively triable by the Court of

Sessions, the Magistrate has to call upon the complainant to produce all his witnesses and examine them on oath as required Sub-section 2 of Section

202 of the Cr.P.C. The earlier procedure adopted was tried to Sessions Trial. Therefore, before charge evidence was being recorded on 13.4.2012.

During this recording of evidence before charge, the amendment came into force. Therefore, the learned JMFC committed the case to the Court of

Sessions. Hence, it cannot be said that the same is not the right procedure. So far as framing of charge is concerned, at the time of framing of charge,

the Court has to consider prima facie case. It is not to be seen whether the case is beyond reasonable doubt or not. If the Court come to the

conclusion that commission of offence is the probable consequence reason for framing of charge exists. At the stage of framing of charge, probative

value of material on record cannot be gone into.

On behalf of the applicant, reliance has been placed in case of P. Vijayan Vs. State of Kerala and another, (2010) 2 SCC 398, wherein the Apex

Court has held that after evaluating the materials produced by the prosecution and after considering the probability of the case, the trial Court being

satisfied by existence of sufficient grounds against the appellant, framed charge and dismissed the discharge petition. The Apex Court held that at this

stage, it cannot be claimed by the appellant that there is no sufficient ground for proceeding against him and discharge is the only course open.

Whether the trial will end in conviction or acquittal is also immaterial. This relevant aspects were carefully considered by High Court and it rightly

affirmed order passed by the trial Court dismissing discharge petition filed by the appellant.

On behalf of the applicants, it is contended that if two views are possible, one of them gives rise to suspicion, as distinguish for grave suspicion as to

guilt of the case, the trial Judge will be empowered to discharge the accused and he is not to see whether the trial will end in conviction or acquittal. In

this regard, it would be sufficient to mention that in assessing this fact, it is not necessary for the Court to enter into pros and cons of the matter or into

a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. Therefore, the settled legal

position is that if on the basis of material on record the Court could form an opinion that the accused might have committed offence, it can frame the

charge, though for conviction the conclusion is required to be proved beyond reasonable doubt, that the accused has committed the offence. It has

been observed by the Apex Court in the case of Soma Chakraverty Vs. State (2007) 5 SCC 403. At the stage of framing of charge, the Court would

not indulge in meticulous examination of evidence whether the statement of witnesses before charge evidence supported the prosecution story, the

Court would frame the charge against the accused, would not discharge them merely because there is some suspicion. Therefore, the plea of applicant

do not have much contents.

(D) Committal of the case:- It is argued by learned counsel for the applicants that case has been committed by the learned JMFC on 28.10.2016 to the

Court of Sessions, pursuant to the amendment made in the Code of Criminal Procedure on 14.02.2008. Referring to the case of Ramesh Kumar Soni,

Vs. State of Madhya Pradesh, 2013 AIR SCW 1568 wherein the Apex Court has held that the Full Bench decision of this Court is not correct

proposition of law. The date of cognizance has to be considered for committal of the case. The decision rendered by the Full Bench in case of

Ramesh Kumar Soni (supra) stands over ruled but only prospective, trial of the cases that were sent back from the Sessions Court to the Court of

Magistrate First Class under the orders of Full Bench may also have been collected or may at an advance stage. Any change of forum at this stage in

such cases would cause unnecessary and avoidable hardship to the accused in those cases, if they were to be committed for trial in the light of the

amendment and the view expressed by us.

The Hon’ble Apex Court in this case examined the principle of “prospective overruling†and it has been invoked and held that no matter

sparingly, to avoid unnecessary hardship and anomalies. This doctrine was first invoked in the case of Golak Nath and Ors. Vs. State of Punjab and

Ors., AIR 1967 SC 1643. The law declared by the Court applies to the cases arising in future only and its applicability to the cases which have

attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence. Invocation of doctrine of

prospective overruling is left to the discretion of the Court to mould with the justice of the cause or the matter before the Court. The Apex Court

finally has given a verdict that Full Bench judgment of the case of “Ramesh Soni†will not effect the cases that have already been tried or at an

advance stage, before the Magistrate in terms of the said decision.

If we examine the present case, though the cognizance was taken on the basis of before charge evidence recorded under the procedure for warrant

trial before charge evidence of the complainant and his witnesses recorded and cross-examined from 30.4.2012 onwards till 21.4.2016, the applicants

failed to produce the certified copies of charge sheet, which can be verified at the stage of trial. Therefore, it would be appropriate to ask for

remanding the case back to the JMFC for trial according to the law, that would be counted productive.

(E) Sanction for prosecution:- Allegedly, the applicants were Patwaries at the relevant time, hatched a conspiracy with other accused persons, namely

Ram Gopal and Lekh Raj Singh and deliberately committed the crime knowing well that the documents were forged. The applicant No.1 Brajendra

Sharma prepared Rin-pustika and Bhu-Adhikar Pustika on the basis of forged documents in the name of Hajra Begum. On the basis of forged

documents and in absence of the signature of Hajra Begum prepared those documents. It is alleged that the applicant No.1 Brajendra Sharma and

applicant No.2 Satyanarayan Singh mutated the land of Ramjan in the names of his heirs, though, Ramjan was alive on 5.6.1991. It is contended that

Ramjan died on 28.8.1991 and the mutation was done on 24.8.1991 without verifying the death of Ramjan. Though, it is alleged that accused Nos.6 &

7 have committed the crime in conspiracy with applicants No.1 and 2, but the applicants No.1 & 2 have actually acted upon the documents, which

were produced before them. They had the knowledge that the documents were forged. The mutation of the land is the duty of Patwari and issuing of

Rin-pustika or Bhu-Adhikar Pustika is also the duty of Patwari. In this regard, it can be safely stated that the applicants have acted in discharge of

their official duty. Though, learned trial Court in the impugned order has stated that execution of false documents or preparation of forged documents

in conspiracy with other accused persons, hence no doubt, the offence under sections 467 and 468 of the IPC is made out. According to the

complainant, the applicants have not executed these documents and not prepared false documents. Therefore, the offence allegedly committed by the

applicants cannot be said to be an offence of criminal conspiracy to prepare the forged documents. Though, prima facie, as per evidence available on

the record, it is the documents on the basis of which they acted upon.

In this regard, learned counsel for the applicants relied on Choudhary Parveen Sultana Vs. State of West Bengal and another, 2009 AIR SCW

861, wherein the Apex Court has held that, “act done in discharge of official duty does not include cases of abuse of powerâ€. It would be

appropriate to mention that public servant while acting or purporting to act in discharge of his official duty, if does anything, sanction is necessary

under section 197 of the Cr.P.C. The protection is available when alleged act done by the public servant is done in discharge of his official duty and is

not merely a cloak for doing objectionable act. The test to determine the reasonable connection between the act complained of and the official duty

has been considered. Even if the public servant acted in excess of his duty, if there exists the said reasonable connection, excess will not deprive him

of of the protection. But once any act or omission is found to have been committed by a public servant, so far as its official nature is concerned, where

act or omission performed by a public servant had reasonable connection in discharge of his duty, it must be held to be official.

Therefore, this Court is of the opinion that the applicants have neither prepared the alleged false documents nor committed forgery for the purpose

of cheating. Hence, the applicants are protected under the umbrella of section 197 of the Cr.P.C.

Accordingly, this revision is partly allowed.

Learned trial Court is directed to proceed against the applicants only after appropriate sanction, if granted, by the Competent Authority in this

regard.