Ram Kalyan vs Motilal and Others

M. Kapur, J.—The petitioner in this case has challenged the order of the learned Sessions Judge, Tonk dated January 6th, 1989 by which he accepted the revision petition against the order of the Munsif and Judicial Magistrate, Niwai dated April 26th, 1988 by which charge Under Sections 204 and 466 IPC was framed against the respondents. The respondent No. 1 is the Sarpanch of Gram Panchayat Khanddawat, while respondent No. 2 is the Patwari of this area and the respondent No. 3 is the ward member of this Panchayat. It so happened that on the application of the petitioner for mutation of four Khasra numbers on the basis of a will executed by Bhagwan Das the Panchayat met on March 23rd,. 1984 and accepted the application and the entry about mutation was made in the record. However, on the same day this entry was crossed and a remark was made on the reverse that Rampratap Bairwa had moved an application that he was in possession of the three of the four Khasra numbers. On this basis, the application of Ram Pratap was accepted and necessary entries in respect of three Khasra number was made by the Patwari.

The order framing charge is an interlocutory order and it has been held in Namichand v. State of Rajasthan RLW 1987 (2) Raj 632 that a revision against the order framing charge does not the as this is an interlocutory order. On the basis of this is said that the revision court had no jurisdiction to entertain revision and on this ground the order of the learned Sessions Judge deserves to be set aside.

The question which arises is whether the order of the learned Magistrate should be allowed to remain and for this purpose it is to be seen whether in this case there is some ground for framing charge against the respondents. It may be stated that if Sarpanch or the Gram Panchayat has committed any illegality in passing any order then the same cannot be said to be a forgery unless the ingredients of the offence of forgery are made out. The learned Counsel for the petitioner has contended that the mutation entry has been crossed in order to cause injury to him and this has been done with dishonest intention. As such, there are sufficient grounds for proceeding with the case after framing charge.

On the other hand, the learned Counsel for the non-petitioners has submitted that in the present case it cannot be said that the record has been tampered with but what has been done is in pursuance of a order passed by the Gram Panchayat. Reference to this order has been made in the mutation register itself in order to show how the entry in favour of the petitioner was crossed. It is submitted that the order canceling the mutation is and appeasable order and the petitioner even preferred an appeal before the SDO from where the matter has been remanded to the gram Panchayat with the direction to decide the matter afresh after giving the petitioner an opportunity of hearing. According to him, the ingredients of a criminal offence cannot be said to be made out from the facts and circumstances of the present case. Another ground raised is that the Sarpanch, Patwari and the Panch are public servants and they cannot be prosecuted without pervious sanction is provided in Section 197 Cr.PC. According to him abuse of authority will not became a forgery.

I have considered the contentions raised on behalf of both the sides. From the entry the mutation register it is obvious that first the entry was made in favour of the petitioner then the entry was cancelled in respect of three Khasra numbers out of four by an order of the Gram Panchayat. It is not a case therein the mutation entry has been crossed without the orders of any Authority. It is a different matter. Whether the authority was competent to pass such an order or not and whether before passing such order it should have heard the petitioner and others also. It cannot be said to be a case where in the mutation order has been cancelled by the Patwari on his own. The Gram Panchayat has authority to cancel a mutation order and if this authority is there, the order has been passed without following the proper procedure. In the facts and circumstances of the case it cannot be said that there are sufficient grounds for proceeding against accused petitioners after framing charge.

In Pukhram v. Ummaid Ram 1964 RLW 238 a Division Bench of this Court while dealing with the divergence of judicial opinion in earlier case held that a Sarpanch could be removed only by the State Government and cognizance against him on a complaint could not be taken unless there was previous sanction of the State Government. On basis of this, in the present case also it can be said that the respondents who are public servants cannot be prosecuted unless there is previous sanction of the State Government u/s 197 Cr.PC.

It is held that the order of the learned Sessions Judge was without jurisdiction but at the same time it is also held that this petition cannot be accepted so as to restore the order of the learned Magistrate. Hence, the order of the learned Sessions Judge as well as of the learned Magistrate are set aside and the prosecution against the petitioner is quashed and the charge framed against the respondents is also quashed, they are discharged of the offence Under Sections 446 and 204 IPC.