Omkareshwar Tiwari vs State of Madhya Pradesh

S.C. Sharma, J.—The present petition u/S. 482 of the Code of Criminal Procedure, 1973 has been filed against the order dated 27/8/2014 passed by the learned Special Judge, Dhar (Prevention of Corruption) in Special Case No. 1/2007.

In the present case, the petitioner is facing prosecution under the Prevention of Corruption Act, 1988 and he is aggrieved by order dated 27/8/2014 by which a statement made to the police by one Vikram Singh Tomar who has been later on added as an accused, has been ordered to be exhibited in evidence of the Investigation Officer.

Contention of the petitioner is that the aforesaid order has been passed in violation of Sec. 162 of the Code of Criminal Procedure, 1973.

The present petition is arising out of FIR Nos. 28/99 and 5/99 for the offence punishable under sections 13(i)(d) and 13(ii) of Prevention of Corruption Act, 1988 and Section 109 and 120-B of IPC. At the relevant point of time Ramesh Patel was Sub Divisional Officer, Dhar and Ashok Jain was contractor in whose favour licence was granted by the Collector. Ashok Bhonde at the relevant point of time was Reader of Sub Divisional Officer, Dhar and Sardarpur and Onkareshwar Tiwari, the present petitioner was the then Collector of District Dhar.

The respondent No. 1 lodged a FIR in the year 1999 vide Crime No. 28/99 under Section 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 and under Sections 109 and 120-B of IPC against four government employees and one Ashok Jain of Trimurti Builder viz:

"(1) O.R. Tiwari, the then Collector, Dhar

(2) Ramesh Patel, the then SDO, Sardarpur District Dhar

(3) Shri Vikram Singh Tomar, the then Reader to Collector, District Dhar

(4) Shri Ashok Bhonde, the than Reader of SDM Sardarpur

(5) Ashok Jain of Trimurti Builder, Dhar."

The material facts of the case are that the land bearing Survey Nos. 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 53, 45 and 56 located at village Magajpura in Tehsil and District Dhar stood recorded in the name of Hamirchand, son of Nihalchand Chaudhary. In the revenue record of 1947-48, the name of one Jasoda, widow of Rama was recorded in Column No. 5 as subtenant in respect of all the aforesaid survey numbers.

Thakur Nihalchand Choudhary the then Jagirdar had obtained a decree of possession in respect of land in question against Bhagirath in Civil Suit No. 75/1951 and started execution proceedings. Baghirath as the judgment debtor raised an objection that by operation of law he has become Pukka Bhumiswami and cannot be ejected from the land in question. The Court of Civil Judge Class-I, Dhar passed an order on 25.7.62 in Civil Suit No. 75/1951 upholding the objection on the ground that he become Pakka Tenant and, therefore, he cannot be ejected from the land. The Civil Judge Class-I relying the decision of High Court in the case of Narsingh Kalu v. Rao Nihalkaran, 1962 MPLJ Short Note No. 89 passed the above order. The Civil Appeal No. 26-B/62 filed by Kunwar Hamirchand Choudhary S/o. Nihalchand was dismissed by the District Judge Dhar on 27.10.64, as a consequence of which the decree passed by the Civil Court stood affirmed. M.P. Ceiling on Agricultural Holdings Act, 1960 (in short ''the Ceiling Act'')came into force on 15.11.61. The Naib Tehsildar, Dhar in Revenue Case No. 15/A-6/62-63 (Bhagirath, son of Rama and others v. Thakur Hamirchand and Nihalchand), passed an order of mutation under Section 190, 109-110 of MPLR Code in favour of Bhagirath, son of Rama over the land in question while deleting the name of Hamirchand on the basis of the order passed by the Civil Court on 25.7.1962. The aforesaid order of Naib Tehsildar had given affect to order of Civil Court by making revenue entries in favour of Bhagirath S/o. Ram in the Khatoni for 1962-63 with effect from 18.7.63.

Proceedings under the Ceiling on Agricultural Holdings Act were commenced against Nihalchand, son of Pratapchand Chaudhary which were registered as Ceiling Case No. 12/63-64/A-90/B-3 (subsequently renumbered as 2/75-76/A-90/B-3 and 21/75-76/A-90/B-3). Thakur Nihalchand submitted his return in the ceiling case in Format ''K'' under Section 9 of the Act. The Format ''K'' relates to the land held by Thakur Nihalchand on 15.11.1963. The land ad-measuring 1789.94 acres of 47 villages belonging to Thakur Nihalchand Choudhary was affected by the Ceiling Act. He submitted his return on 14.12.64 in Format ''K'' (page No. 1423 of petition). As per return filed by Nihalchand in Format ''K'' it is alleged in the petition that the land in question was not shown in that Format. On 2.9.74 Patwari submitted the information in Format ''5'' regarding the lands held by Thakur Nihalchand and and his wife in village Magajpura. It is alleged that the land in question does not find place in this format also. In Format ''5'' the land held by Thakur Nihalchand and his wife on the appointed dates namely 15.11.61, 15.11.63, 1.1.71, 7.3.74 has been shown. On 28.5.76 draft statement was published (Order sheet is at page No. 1235). In that statement the details of land of Magajpura in the name of Indubai (wife of Nihalchand) were published. It is alleged that the land in question does not find place in that statement. Thereafter, on 15.6.76 one unsigned objection was filed (copy of objection is at page No. 248-249) by Suresh, Prahlad, Ramesh, Jagdish and Shankar, sons of Bhagirath stating therein that if the land in question was included in the ceiling case then the same be released from the ceiling proceedings.

The Competent Authority vide order dated 30.6.76 allowed the objection submitted by the sons of Bhagirath Prasad thereby ordering the release of land in question from ceiling. Thereafter, on 8.2.89 final statement was published under Section 11 of the Ceiling Act. The land in question was not entered in any column of the final statement.

Smt. Abha, widow of Hamirchand and another challenged the order of competent authority by filing an appeal before the Collector District Dhar vide Case No. l60/88-89/Ceiling/Appeal. The Collector held that that the SDO (Competent Authority) had the jurisdiction to decide the ceiling case and dismissed the appeal on 26.12.89.

The persons whose land were declared surplus in the ceiling case have challenged the order of the Competent Authority by filing three appeals before the Collector, District Dhar vide Appeals No. 161/1988-89/Appeal (Amarsingh and another of village Takravada v. State of M.P.), 166/1988-89/Appeal (Dayaram of Manasa v. State of M.P.) and 143/1988-89/Appeal (Gauribai of village Tarod v. State of M.P.). All the three appeals were decided on 30.6.1995 by the Collector holding that the Sub-Divisional Officer, had no jurisdiction is to decide the ceiling case as the lands in the ceiling case were situated in two Tahsils i.e. Dhar and Sardarpur and on this finding the Collector set aside the order dated 30.6.1976 and 8.2.1989 and remanded the matter to the SDO Dhar with a direction to issue notice to the holders and objectors and after hearing to transmit the case to the Collector for passing final orders.

The aforesaid order passed by the Collector was received at the Office of SDO, Dhar by Shri Ashok Bhonde, the then Reader to SDO. At that relevant point of time, Shri Virendra Singh Rawat was the SDO, Dhar-Sardarpur. Ramesh Chandra Patel, petitioner in M.Cr.C. No. 1816/07 was posted as SDO, Dhar- Sardapur on 17.7.95. On 19.7.95 he joined as SDO, Dhar- Sardarpur. It is alleged that the aforesaid order dated 30.6.95 passed by the Collector was never produced before the petitioner by the Reader, as admitted by the reader in his statement dated 28.9.2004 given before the SDO.

On 12.12.95 three applications for diversion were filed by Jagdish, Ramesh and Prahlad, son of Bhagirath through their Power of Attorney holder Ashok, son of Babulal Jain before the SDO (Ramesh Chandra Patel) under section 172 of the MPLR Code, 1959, in respect of the lands in question. These applications were registered as Revenue Case Nos. 10/95-96/A-2 (Jagdish v. State of M.P.), 11/95-96/A-2 (Ramesh v. State of M.P.) and 12/95-96/A-2 (Prahlad v. State of M.P.). On 30.12.1995 the Collector, Dhar issued a letter to SDO, Dhar-Sardarpur to hold an inquiry and to report for grant of colony license in respect of the land in question. On 23.1.1996 SDO sent a report to the Collector in the matter of grant of colony license in respect of the land in question mentioning that the land in question was not affected by ceiling. On 1.3.96, the aforesaid three diversions cases were decided by SDO and the lands for diversion in question were permitted to be diverted for residential use. Paragraphs 2, 3 and 4 of order dated 1.3.96 reads as under:--

The then SDO, contrary to the order passed by the Collector, on 30.6.95 passed the order of diversion. On 6.3.96 SDO sent another report to the Collector in the matter of grant of colony license in respect of the land in question on account of certain queries having been raised by the Collector. Para 6 of the report dated 6.3.96 is relevant, which reads as under:--

Sons of Bhagirath challenged the order dated 30.6.95 passed by the Collector in three appeals by filing a revision before the Additional Commissioner, Indore Division, Indore vide case No. 697/95-96 Revision. The Additional Commissioner vide order dated 21.6.96 allowed the revision and set aside the order dated 30.6.95. The order of the Additional Commissioner dated 21.6.96 was challenged by filing a revision before the Board of Revenue, M.P. Gwalior. The Board of Revenue on 3.5.1997 decided the revision case Nos. 30-1/1996 (Amarsingh and another v. State of M.P. and others) and 32-1/1996 (Gauribai v. State of M.P. And others), whereby the order dated 30.6.76 passed by SDO, order dated 30.6.95, passed by the Collector and the order dated 21.6.96 passed by the Additional Commissioner in the ceiling case were set aside and the matter was remanded back to the Collector, Dhar, to re-decide the ceiling case having regard to the position as on the appointed date i.e. 7.3.74.

It has been alleged in the FIR that the land of 10.879 hectare of village Magajpura, Tehsil Dhar were recorded in the name of Jagirdar Shri Nihalchand Chaudhary in 1957-1958 and thereafter the land was mutated in the name of Hamirchand Chaudhary. Due to passing of the order dated 30.6.95 by the Collector the disputed lands were affected by the Ceiling Act. It was further alleged that despite having knowledge of the aforesaid order Ramesh Chandra Patel, SDO, Dhar-Sardarpur in his enquiry report dated 23.1.96 stated that the land in question was not affected by Ceiling Act and passed diversion orders. It was further alleged that on 6.3.1996 Ramesh Chandra Patel, SDO, Dhar-Sardarpur referred his report that there was no inconvenience or public nuisance in the development of a colony on the land in question.

It has been alleged that in his order dated 1.3.1996 he has wrongly stated that the land in question is not affected by the Ceiling Act and there was no ceiling case pending in the Court. It was further alleged that the colonizer Ashok Jain sold plots to general public and earned profits. Thus, these officers illegally benefited the colonizer and caused loss to the Government exchequer and misused their office and committed offence under Sections 13(1)(d) and 13(2) of Prevention of Corruption Act and Section 120-B of IPC.

The present petitioner being aggrieved by framing of charge, came up before this Court by filing a petition u/S. 397 read with Sec. 401 of the Code of Criminal Procedure, 1973 and the same was registered as Cr. Rev. No. 568/2009. This court has dismissed the revision petition by order dated 20/10/2011. Now, while the trial is going on, again against an order dt. 27/8/2014 passed by the trial Court, the present petition has been filed.

The trial Court, has relied upon the judgment delivered by the apex Court, in the case of State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 : (2005) CriLJ 3950 : (2005) 11 SCC 600 : (2005) 3 SCR 79 Supp : (2005) AIRSCW 4146 : (2005) 5 Supreme 414 , wherein the apex Court has held as under :

"''discovery of fact'' cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place"

Similarly, the trial Court has also relied upon the judgment delivered by the apex Court in the case of Himanshu Singh Sabharwal Vs. State of M.P. and Others, AIR 2008 SC 1943 : (2008) 3 JT 550 : (2008) 4 SCALE 93 : (2008) 3 SCC 602 : (2008) 1 UJ 495 : (2008) AIRSCW 2206 , wherein the apex Court has held as under :

"If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators."

The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness."

The order has been passed by the trial Court to secure the ends of justice and the ban imposed by Sec. 162 does not operate against the powers of the Court against Sec. 165 of the Evidence Act.

Not only this, the petitioner shall also be free to raise all possible grounds in case an adverse order is passed against him after conclusion of the trial. The petitioner is in fact, at every stage, is coming to this Court and the trial which is pending before the Court below is being delayed for no rhyme or reason. The FIR lodged, In the present case, is of the year 1999 and almost a period of 15 years is over and, therefore, this Court is of the considered opinion that keeping in view the totality of the circumstances of the case, no case for interference is made out at this juncture. The trial Court is also directed to decide the trial as expeditiously as possible, preferably within a period of 6 months from the date of receipt of certified copy of this order.