Mohammad Abbas vs State of Madhya Pradesh

Petitioner has filed this petition against the order dated

20.04.2016 passed by the trial Court, by which the trial

Court has framed charge against the petitioner in Special

Case No.08/2015 for commission of offence punishable

under Section 120-B of Indian Penal Code on two counts.

Against another co-accused Anju Singh Baghel, the Court

framed charge punishable under Section 13(2) of Prevention

of Corruption Act and Section 418 of Indian Penal Code.

The petitioner on 05.02.2008 submitted an application

for exchange of land. In the aforesaid application, the

petitioner pleaded that he is the owner of a land area 1.90

hectare situate at Sleemanabad, Patwari Halqa No.38,

Khasra No.622 and the aforesaid land be exchanged with the

Government land situate at Village Hardua Khurd, Tehsil

Bahoriband, District Katni, Patwari Halqa No.38, Khasra

No.109 area 0.60 hectare and Khasra No.111, area 0.78

hectare, total area 1.38 hectare. On the aforesaid application,

Sub-Divisional Officer registered a case vide Revenue Case

No.3/A/25/2007-08 for exchange of land. A report was

called and paper publication was made. Gram Panchayat

submitted its report. On 17.06.2008 statement of the

petitioner was recorded. The Patwari/Revenue Inspector was

directed for spot inspection. Naib Tehsildar in his proposal

recommended the exchange of the land. The Collector called

a report from the Sub-Divisional Officer. He submitted a

report on 25.08.2008. Thereafter, the then Collector passed

the order on 14.11.2008 in regard to exchange of land.

The Collector was transferred and, thereafter, another

Collector was posted and he had taken the matter in suo-

moto review. He noticed certain illegalities, thereafter, vide

order dated 26.12.2009 he canceled the order of exchange of

land passed by the earlier Collector Smt. Anju Singh Baghel.

Against the aforesaid order, the petitioner filed a petition

before the Board of Revenue. The Board of Revenue set

aside the order dated 26.12.2009 passed by the Collector

canceling the order of exchange of land vide order dated

04.03.2011 on the ground that it was necessary for the

Collector to take permission from the Board of Revenue in

accordance with Section 51 of the M.P. Land Revenue Code

before taking the matter in suo-moto review. Because no

such permission was taken, hence, the order passed by the

Collector was illegal. The Board of Revenue set aside the

order passed by the Collector canceling exchange of land.

The Board of Revenue further granted a liberty to the

administration and the Collector to submit appropriate

application for grant of permission for review.

The Economic Offence Wing (hereinafter referred as

''EOW'') registered an offence against the petitioner and other

persons for commission of offence punishable under Section

13(1)(d), 13(2) of Prevention of Corruption Act, 1988 read

with Section 120-B of the Indian Penal Code. The EOW

filed a charge-sheet before the competent court of

jurisdiction. The Court had framed the charge against the

petitioner for commission of offence punishable under

Section 120-B of the IPC on two counts.

Learned Senior Advocate has contended that the trial

Court has committed an error of law in framing of charge

against the petitioner because no offence is made out against

the petitioner. The order of exchange is still in existence.

After passing of the order of the Board of Revenue, the State

Administration did not approach the Board of Revenue for

permission for review. Hence, it cannot be said that the

petitioner had committed any offence. It is further submitted

by the learned Senior Advocate that there is no evidence that

the petitioner had offered any bribe to the then Collector in

regard to exchange of land. The merits of the case of

exchange of land could not be considered because the order

of exchange of land is still in existence. The petitioner did

not receive any gain, neither any loss is caused to the

Government.

The learned Panel Lawyer for the State has contended

that after perusal of the charge-sheet, there is sufficient

evidence to held the petitioner guilty for commission of

offence at the time of framing of charge. The Court cannot

consider the merits of the case, if there is a prima facie

evidence then the Court is competent to frame the charge.

The present case was heard on 28.09.2016. Thereafter,

vide order dated 18.10.2016, this Court directed the

competent authority to file an affidavit that whether any

application for grant of permission as ordered earlier by the

Board of Revenue was filed or not. This Court passed

following order on 18.10.2016:

"1. The petitioner has filed this petition for quashment of the criminal proceedings and framing of charges under Section 120-B of IPC (on two counts) against him. 2. During arguments it has come to the knowledge of the Court that against the order of cancellation of earlier order by which the Collector allowed mutual exchange of land of the petitioner and Government, was cancelled by the Board of Revenue on the ground that the Collector could not take the matter in Suo moto revision without permission from the Board of Revenue. The Board of Revenue granted liberty to file an application for permission. However, from the record, it does not transpires that the application was filed before the Board of Revenue for grant of permission to take the matter in Suo Moto revision. It means that the order passed by the then Collector Smt. Anju Singh Baghel, is still in existence. 3. In this view of the matter, the competent Authority is directed to file an affidavit to the effect that whether any application for grant of permission as ordered earlier by the Board of Revenue has been filed before the Board of Revenue or not. In our opinion, the aforesaid fact is necessary for proper adjudication of the case. 4. The affidavit be filed within a period of three weeks from the date of receipt of the copy of the order. Thereafter, this petition be listed for hearing."

In pursuance to the order passed by this Court, the

competent authority Mr. R.S. Rawat, Deputy Superintendent

of Police, Economic Offence Wing, Jabalpur, OIC of the

case filed an affidavit. He has stated on oath as under:

"2. That I have written a letter dated 13.11.2016, whereby information about filing of application for grant of permission for review of order dated 14.11.2008 has been sought from the office of Collector, Katni, earlier also said information was sought by me vide order dated 9.11.2016. The copies of the letter dated 30.11.2016 & 09.11.2016 are enclosed herewith as ANNEXURE D-1. 3. That in response to the letter dated 30.10.2016 the office of Collector, Katni has informed me through letter dated 9.12.2016 that no permission for review of order dated 14.11.2008 has been sought from the Board of Revenue meaning thereby order dated 14.11.2008 followed by order dated 4.3.2011 are still in existence. Copy of the letter dated 9.12.2016 is enclosed herewith as ANNEXURE D-2."

From perusal of the affidavit of OIC, it is clear that no

application has been filed before the Board of Revenue for

grant of permission for review the order dated 14.11.2008

passed by the then Collector. It is further mentioned in the

affidavit that the order dated 14.11.2008 passed by the then

Collector Anju Singh Baghel is still a valid order. By the

aforesaid order, the Collector has permitted the exchange of

land. The subsequent order passed by the another Collector

dated 26.12.2009 by which the order dated 14.11.2008 was

set aside is not in existence because the Board of Revenue

has canceled the order dated 04.03.2011.

The allegation against the petitioner is that he

received the Government land in exchange illegally. There is

no allegation in the charge-sheet or there is no evidence that

the petitioner had offered any bribe to the then Collector.

The allegation is that the petitioner had secured a benefit and

a loss was caused to the Government, however, the fact

remains that the order of exchange is still valid. Hence, it

could not be held that a loss was caused to the Government

by the petitioner due to exchange of land.

The Apex Court in the matter of State of Karnataka vs

L. Muniswamy and others reported in 1977 SCC (Cri) 404

has held as under in regard to power and duty of the Court at

the stage of framing of charge:

"Also it is wrong to say that at the stage of framing of charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. The order framing a charge affects a person''s liberty substantially and therefore, it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial."

The Apex Court has specifically held that it is the

duty of the Court to consider judicially that whether material

warrants framing of charge.

Section 120-B of the Indian Penal Code reads as

under:

120-B. Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] Cr.R. No.1252 of 2016/8

or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."

Section 13(1) and 13 (2) of the Prevention of

Corruption Act read as under:

"13. Criminal misconduct by a public servant. --(1) A public servant is said to commit the offence of criminal misconduct, (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7 ; or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,-- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

13(2). Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."

Section 418 of the Indian Penal Code reads as under:

"418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.-- Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

The Apex Court in the matter of Sanjiv Kumar etc. vs

Himachal Pradesh, Kamlesh Tyagi vs Himachal Pradesh

and Lekh Raj Gupta vs Himachal Pradesh reported in AIR

1999 SC 782 has held as under in regard to ingredients to

hold a person guilty for commission of offence under

Section 120-B of the IPC:

"19. Coming to the question of charge under Section 120-B I.P.C. to establish a conspiracy between accused Sanjiv Kumar and accused Kamlesh, apart from the relationship, namely Sanjiv was the nephew of Kamlesh the prosecution evidence is totally silent to establish a criminal conspiracy between them for committing the murder of deceased Rajesh. The offence under Section 120-B is an agreement between the parties to do a particular act. ...."

The Apex Court further in the matter of Vijayan vs

State of Kerala with K.V. Sadanandan vs State of Kerala

reported in (1999) 3 SCC 54 has held as under in regard to

conspiracy for commission of offence under Section 120-B

of IPC:

"To bring home the charge of conspiracy within the ambit of Section 120-B IPC, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from the established facts an inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy."

In the present case, there is no allegation that the

present petitioner had offered any illegal gratification to then

Collector Smt. Anju Singh Baghel for the purpose of

exchange of land. There is also no evidence on record to

show that the present petitioner had a meeting with the then

Collector Smt. Anju Singh Baghel, who had passed the

order, or the present petitioner approached the then Collector

Smt.Anju Singh Baghel to secure the order in his favour. In

order to meeting out an offence punishable under Section

120-B, there must be an evidence, prima facie, that there was

meeting of mind in order to enter a conspiracy. In the present

case, there is no such evidence. Apart from this, the order of

exchange of land passed by the then Collector Smt. Anju

Singh Baghel has still not been set aside. Neither any review

petition has been filed by any authority of the State before

the Board of Revenue for grant of permission to review the

order. It means that the State has accepted the order of

exchange of land passed by the then Collector Smt. Anju

Singh Baghel. Hence, there is no evidence that any wrongful

loss was caused to the Government due to exchange of land. 19. The Apex Court in the matter of State of Karnataka vs

L. Muniswamy and other, 1977 SCC (Cri) 404, as quoted

above in this judgment, has held that it is the duty of the

Court to consider judicially that whether material warrants

framing of charge. The trial Court has only observed that

the prosecution against the petitioner for commission of

offence under two counts is not without any basis. The Court

has not even mentioned that there is evidence against the

petitioner in this regard.

Looking to the aforesaid facts of the case, in our

opinion, there is no evidence against the petitioner to frame

charge against him for commission to offence punishable

under Section 120-B of the Indian Penal Code for two

counts. Hence, the charge framed against the petitioner is

hereby quashed and the order under revision is set aside. The

revision petition stands allowed.