Kameshwar Prasad vs State Of Jharkhand

Heard the parties through video conferencing.

This Cr.M.P. has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 26.11.2009 passed by learned Special Judge, Vigilance, Ranchi whereby and where under learned Special Judge, Vigilance, Ranchi has found prima facie case for the offences punishable under Sections 423, 424, 467, 468, 469, 471, 477A, 409, 201, 109 and 120-B of the Indian Penal Code and Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 against the petitioner and the co-accused persons of the case and accordingly took cognizance against the petitioner as well as the entire criminal proceeding in connection with Special Case No.15 of 2000 arising out of Vigilance P.S. Case No.28 of 2000.

The brief facts of this case is that one Tulsidas Kanodia sold 11 kathas of land pertaining to plot No.28 falling within the urban area of Ranchi on 01.07.1982 to the vendor of the petitioner namely Vir Kumar Jain. Since the proceeding under the Urban Land (Ceiling and Cr. M.P. No.2329 of 2014 Regulation) Act, 1976 (hereinafter referred to as 'the Act') was going on, hence, the vendor of the petitioner filed an application before the competent authority for dropping the proceeding as far as the 11 kathas of the land is concerned but the application was rejected on 06.07.1987 by holding that the deed of transfer is null and void. In spite of that, the vendor of the petitioner sold the land to the petitioner and another person on 12.06.1989 concealing the fact that his prayer for dropping of the proceeding with respect to that land had already been rejected by the competent authority. In spite of that, the land was mutated in the name of the petitioner in violation of the provision as contained in Section 5(3) of the Act. It is alleged that the petitioner in criminal conspiracy with the co-accused persons including the Revenue Officers and the Officers of the concerned Government department abetted the commission of the said act.

After completion of the investigation charge-sheet has been submitted and by the impugned order cognizance of the said offences has been taken inter alia against the petitioner.

Mrs. J. Mazumdar- learned counsel for the petitioner submits that even accepting that the entire allegations against the petitioner are true, what the petitioner is alleged to have done is that in spite of the application filed for dropping out 11 kathas of the land from the Land Ceiling being rejected, the petitioner was instrumental in the said land getting transferred to his name and got the said transferred land mutated in his name. It is next submitted that at best the transfer which was made in the name of the petitioner on 12.06.1989 may be null and void but certainly the petitioner cannot be prosecuted for any criminal offence of forgery, Cr. M.P. No.2329 of 2014 criminal breach of trust, fraudulent execution of deed of transfer or dishonest or fraudulent removal or concealment of property. It is next submitted that the essential ingredients to constitute the offence punishable under Section 13 (1) (d) of Prevention of Corruption Act, 1988 is lacking and the fact that the petitioner came into picture after a period of about 7 years from the original purchase of the land by the vendor from the person in possession of the land in excess of the land prescribed under the Act namely Tulsidas Kanodia. It is then submitted that, it cannot be said that the criminal conspiracy was going on for a period of more than seven years in which the petitioner was allegedly involved. It is also submitted that the cognizance taken against the co- accused persons namely Vir Kumar Jain has been quashed vide order dated 07.11.2012 in Cr.M.P. No.982 of 2012, cognizance in respect of Jagnarayan Singh has been quashed vide order dated 07.11.2012 in Cr.M.P. No.788 of 2012, cognizance in respect of Naresh Kumar has been quashed vide order dated 07.11.2012 in Cr.M.P. No.1303 of 2009, cognizance in respect of Narayan Murti has been quashed vide order dated 01.03.2013 in Cr.M.P. No.2818 of 2012, cognizance in respect of Chitranjan Sahay has been quashed vide order dated 04.02.2016 in Cr.M.P. No.2836 of 2013, cognizance in respect of Usha Devi Narsaria has been quashed vide order dated 09.07.2013 in Cr.M.P. No.568 of 2013, cognizance in respect of Anup Jain, Manoj Kumar Jain, Vijay Kumar Jain & Birendra Kumar Jain has been quashed vide order dated 09.07.2013 in Cr.M.P. No.591 of 2013 and cognizance in respect of Indu Sinha has been quashed vide order dated 06.12.2013 in Cr. Revision No.75 of 2013. Hence, it is submitted by Mrs. J. Mazumdar that the impugned order dated 26.11.2009 passed by learned Special Judge, Cr. M.P. No.2329 of 2014 Vigilance, Ranchi by which cognizance has been taken for the said offences so far as it relates to this petitioner, be quashed.

Mr. Suraj Verma- learned counsel for the Vigilance on the other hand submits that the petitioner has purchased and got mutated 11 kathas of land of Tulsidas Kanodia though the competent authority for dropping out the said 11 kathas of land, which was purchased by the vendor of the petitioner, has dismissed the said proceeding and the vendor of the petitioner as well as the petitioner without bringing the fact to the notice of the competent authority for registration of the sale deed and mutation of the said land in favour of this petitioner, has got the same mutated in the name of the petitioner in conspiracy with the co-accused persons. It is next submitted by Mr. Verma that at the stage of cognizance and summoning, the Magistrate is required to apply his mind only with the view to take cognizance of the offence and at the time of taking cognizance, the Magistrate is not required to evaluate the merits of the material. In support of this contention, Mr. Verma relies upon the judgment of Hon'ble Supreme Court of India in the case of Sonu Gupta Vs. Deepak Gupta & Others reported in (2015) 3 SCC 424 para-8 of which reads as under:-

"Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the Cr. M.P. No.2329 of 2014 complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not."(Emphasis supplied) Hence, it is submitted that there is ample material in the record to take cognizance against the petitioner and as the learned court below having rightly taken the cognizance against the petitioner, this Cr.M.P. being without any merit be dismissed.

Having heard the submissions made at the Bar and after carefully going through the evidence in the record, it appears that the vendor of the petitioner having purchased 11 kathas of land from Tulsidas Kanodia on 01.07.1982 filed an application before the competent authority in a proceeding which has been initiated against the original land holder for dropping out of the proceeding for 11 kathas of land. The application got dismissed. In spite of that the vendor of the petitioner sold the land to the petitioner and another purchaser on 12.06.1989 by separate registered sale-deed. There is no material in the record to suggest that the petitioner had any knowledge about the said misdeeds of his vendor but only because he purchased the land from the co- accused vendor namely Veer Kumar Jain, hence, he has been implicated in this case for having been in criminal conspiracy with the co-accused public servant officers and staffs of the revenue department as well as the original land holder Tulsidas Kanodia and his vendor committed the offences alleged. Under Section 10 of the Act if one transfers the land which was the subject matter of the proceeding after the notification is issued under Section 10 (3) of the said Act, the transfer would be deemed to be null and void. At the same time, the Act also prescribe that if one who is holding land excess than ceiling limit transfer of such land becomes null and void.

Cr. M.P. No.2329 of 2014 The Section 464 of the Indian Penal Code divides false documents into three categories:-

(i) Firstly where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.

(ii) Secondly where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.

(iii) Thirdly where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of

(a) unsoundness of mind;

(b) intoxication; or

(c) deception practiced upon him, know the contents of the document or the nature of alteration. In other words, a person is said to have made a "false document", if

(i) he makes or executes a document claiming to be someone else or authorized by someone else; or

(ii) he alters or tampers a document; or

(iii) he obtains a document by practicing deception, or from a person not in control of his senses. So even if the land transferred to the name of the petitioner by an erroneous or illegal order passed by a public servant being against the statute, the same does not constitute any offence punishable under Sections 467, 468, 469, 471 and 477 or 477A of the Indian Penal Code as passing of an illegal order does not assume any characteristics of making a false document. At the same time, the allegations against the petitioner do not Cr. M.P. No.2329 of 2014 constitute the offence punishable under Section 409 is not made out as there is no allegation of entrustment of any property to any Public Servant. Similarly, the offences punishable under Sections 423 or 424 of the Indian Penal Code is not made out as there is no allegation to suggest that the petitioner was having the knowledge of the fact that the said application to drop the said 11 katha of land was dismissed. Thus the essential ingredients of 'Fraudulently' as defined in section 26 of the Indian Penal Code that the petitioner does the alleged acts with intent to defraud is not made out from the allegations made.

So far as the offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 is concerned, though it is alleged that the petitioner in criminal conspiracy got transferred the land to his name in spite of the prayer of his vendor for dropping of the proceedings from the land purchased being rejected and being contrary to the provision of the statute but there is no allegation that the said act has been done by adopting corrupt practices or illegal means for having pecuniary advantage/valuable thing for himself or for any other person. In the absence of the said essential ingredients to constitute the offences punishable under Section 13 (1) (d) of the Prevention of Corruption Act, 1988, the petitioner cannot be prosecuted under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988.

Thus, this Court is of the considered view that the instant case falls within the category (1) and (3) which reads as under :

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Cr. M.P. No.2329 of 2014 (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

enunciated in the illustrative lists of the cases where the cognizance can be quashed either in exercise of the jurisdiction under Article 226 of the Constitution of India or the inherent power under Section 482 of the Code of Criminal Procedure to prevent the abuse of the process of Court in the case of State of Haryana & Others Vs. Bhajan Lal [1992 Supp (1) SCC 335]. Hence, it will be gross abuse of the process of law if the criminal proceeding is allowed to continue against the petitioner and the petitioner is asked to face rigor of criminal trial when the allegations made against him in the first information report and the charge-sheet even if are taken at their face value and are accepted to be true do not constitute any offence against the petitioner.

Accordingly, the entire criminal proceeding of Special Case No.15 of 2000 arising out of Vigilance P.S. Case No.28 of 2000 registered under Sections 423, 424, 467, 468, 469, 471, 477A, 409, 201, 109 and 120-B of the Indian Penal Code and Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 including the order taking cognizance, so far as it relates to petitioner, is quashed and set aside.

In the result, this application is allowed.