Ghanashyam Lenka and Soubhagya Chandra Das vs State of Orissa

L. Mohapatra, J.—Criminal Revision No. 295 of 1997 has been filed challenging the order dated 10.4.1997 passed by the learned S.D.J.M. Cuttack in G. R. Case No. 196 of 1990 rejecting the prayer of the petitioner to recall the order taking cognizance. C.R.L.M.C. No. 17 of 2002 has been filed challenging the order of the learned S.D.J.M., Cuttack in the aforesaid G.R. Case dated 21.2.1994 taking cognizance of offences under Sections 465, 467, 468, 471, 477-A. 420, 109, 119, 120-B and 34 of the Penal Code.

So far as the Criminal Revision No. 295 of 1997 is concerned. It appears that after the learned Magistrate took cognizance in respect of the offences mentioned above in the aforesaid G. R. Case the petitioner and one Zamil Ahmed Khan filed applications separately for recalling the order taking cognizance on the basis of the decision of the Apex Court in the case of K.M. Mathew v. State of Keraia, reported in 1992 (5) OCR 66. The petitioner in his application for recalling the order taking cognizance stated that during the period from 1.4.1979 to 7.4.1982 he was working as the Additional Tahasildar, Cuttack Sadar Tahasil, Cuttack and was entrusted with the C.L. R. Cases. Estate Abolition Cases Certifiate Cases as well as collection of revenue. According to him, the Tahasildar was directly in-charge of the Lease, Encroachment, Mutation and Khasmahal Lease cases. It was pleaded before the learned S.D.J.M. that the petitioner was in no way involved in preparation of forged Ekpadia and the Tenancy Ledger. Since he was the Officer-in-charge of the Record Room, he had granted certified copies of the alleged forged Ekpadia and Tenancy Ledger in favour of some applicants and as Officer-in-charge of the record Room he was only required to certify the cost paid by the parties for the purpose of preparation of certified copy and therefore also not at all involved in the process of preparation of or comparison of certified copies. On the above grounds, the petitioner claimed before the learned Magistrate that he not being involved in any kind of forgery in the records of the Tahasil or in preparation of certified copies thereof, the order taking cognizance should be recalled.

Shri Manoj Mishra, the learned counsel appearing for the petitioner submitted that during the relevant time the petitioner was working as Additional Tahasildar and as Officer-in-charge of the Record Room was only required to certify the cost paid by the parties for the purpose of preparation of certified copies of certain documents. He was also not required to find out the correctness of the certified copies. According to Shri Mishra, the alleged forgery of Ekpadia, Tenancy Ledger had been done by some other staff of the Tahasil and he was at no point of time involved in such forgery. He further submitted that so far as preparation of certified copies are concerned admittedly the petitioner is not an officer who is supposed to either prepare the copies or compare the same and as Officer-in-charge of the Record Room, he was only required to certify the cost paid by the parties for obtaining certified copies. On the basis of such grounds it is contended by Shri Misra that under no stretch of imagination it can ever be said that the petitioner was involved in a conspiracy for forging the original records as well as in grant of certified copies thereof. Reliance was placed on a decision of this Court in the case of State of Orissa v. Rajkishore Choudhury reported in (1998) 15 OCR 103 and it was submitted that under similar circumstances another Additional Tahasildar namely, Rajkishore Choudhury had moved the learned Magistrate for recalling the order taking cognizance and the said application having been allowed, the State carried revision before this Court and the Revision was dismissed.

The learned Addl. Govt Advocate on the other hand submitted in view of certain observations made by the learned Magistrate in the impugned order involvement of the petitioner in a conspiracy cannot be ruled out and at this stage of the proceeding it cannot be said that the petitioner is not at all involved in commission of the offences.

There is no dispute that the petitioner at the relevant time was working as Additional Tahasildar in Cuttack Sadar Tahasil, Cuttack and was Officer-in-charge of the Record Room. The prosecution allegation is that all the accused persons hatched a criminal conspiracy during 1972 to 1982 and they forged the ekpadia, tenancy ledger, rent receipts for the purpose of cheating and basing on those documents the fraudulent claimants cheated the Government by way of filing cases for compensation. It is also alleged that the ekpadia submitted by the ex-landlord at the time of vesting of the estate has been forged by inserting the names of the fraudulent claimants in the Tahasil office. The tenancy ledger was also prepared by inserting several other pages and by obtaining certified copies of those forged documents the fraudulent claimants preferred claims before the Land Acquisition Officer who referred the matter to the civil court and accordingly in several cases lakhs of rupees were awarded in favour of the fraudulent claimants towards compensation. At this stage of the proceeding, it is difficult to say as to whether the prosecution allegations with regard to forgery of Ekpadia. Tenancy Ledger and rent receipts are correct or not. On perusal of the case record, I find that prima facie materials are available to show that forging had been committed in respect of ekpadia, tenancy ledger and rent receipts.

Coming to the next question with regard to the role played by the present petitioner, it appears that at the relevant time he was Additional Tahasildar and also Officer-in-charge of the Record Room. From the impugned order, it appears that reliance was placed on Rule 385 of the Records Manual and it was argued that as Officer-in-charge of the Record Room, the petitioner was only required to certify the cost of the applications and it was also contended that preparation of copy is done by the Record Keeper, Copyists and the Comparing Clerk as well as the Head Clerk. Shri Mishra, the learned counsel appearing for the petitioner submitted that since under the said rule the petitioner was only required to certify the cost of the application, possibly it can never be said that he was involved in commission of any of the offences in respect of which cognizance has been taken. The learned Magistrate in the impugned order after going through the said rule has observed as follows :

"...It is true that as per the aforesaid rule the officer in charge of record room while certify the cost but on a careful reading of the provisions of the records Manual relating to the procedure for presentation and dealing with the copy application, I find that the Officer in charge of record room being the Presiding Officer is solely responsible for all matter relating to the preparation and delivery of the copies. Apart from that as a matter of practice when an application for copy is filed, the same is put up before the Presiding Officer or the Officer in charge of the Copying Department and his consent is obtained for preparation of copy etc. Even when the folios etc. are filed, the same is also put up before the Officer in charge which is quite evident from Rule 371 of the Records Manual. After preparation of copy the same is also put up before the Presiding Officer who makes his endorsement in the concerned register towards delivery of the certified copy to the person concerned..."

It also appears that the learned Magistrate rejected the prayer of the petitioner on the basis of the above observation. The learned counsel Shri Mishra appearing for the petitioner submitted that a similarly situated accused had also filed an application before the learned S.D.J.M. for recalling the order taking cognizance and the same having been allowed, the State had carried revision to this court and the revision was dismissed Reference in this connection was made to the case of State of Orissa v. Rajkishore Choudhury (supra). On perusal of the judgment it appears that Rules 384 and 385 of the Orissa Records Manual had been referred to but the other rules of the Manual on which reliance has been placed by the learned Magistrate were not referred to. Moreover, the learned Magistrate even on a careful reading of the Rule 385 came to the conclusion that the Presiding Officer is solely responsible for all matters relating to the preparation and delivery of copies and I am, therefore, of the view that all the relevant rules of the Records Manual relied upon by the learned Magistrate in the impugned order having not been taken note of in the aforesaid decision. It will not be proper on the part of this Court to interfere with the impugned order at this stage. The other two judgments referred to in respect of two other Officers vide Criminal revision No. 189 of 1997 disposed of on 22.12.2000 and Criminal Misc. case No. 5368 of 1999 disposed of on 21.2.2002 have no application to the facts of the present case. The Officers involved in those two cases had different duties and considering their nature of duties involved, this Court quashed the proceedings. In my view, the appropriate stage for raising the question will be at the time of framing of charge. I, therefore, decline to interfere at this stage and direct that in the event the questions raised before this Court are raised before the learned Magistrate at the time of framing of charge the same shall be looked into and appropriate order shall be passed.

So far as C.R.L.M. C. No. 17 of 2002 is concerned, it appears that though the order taking cognizance was passed on 21.2.94, the petitioner has approached this Court in the year 2002 almost after eight years from the date of order. Therefore, I am not inclined to entertain the application. It will be open for the petitioner to raise the questions at the time of framing of charge and in the event such questions are raised, the same shall be taken into consideration by the learned Magistrate and appropriate order shall be passed.

Both the Criminal Revision and Criminal Misc. Case are accordingly disposed of.