1. This application under section 482 of the Code of Criminal Procedure (in short "Cr.P.C.") seeks quashing of the charge sheet, arising out of Crime No. 271 of 1997, under sections 419, 420, 467, 468, 471, 406 of the Indian Penal Code (in short "IPC") and 13(1)(d) of the Prevention of Corruption Act, 1988 (in short "P.C. Act"), Police Station George Town, District Allahabad pending before the Special Judge (Anti Corruption), Varanasi and consequent proceedings.
2. Brief facts of the case are that there is one Mahanirmani Akhara, situate at Daraganj, Allahabad. Mahant Onkar Puri was the Secretary of the aforesaid Akhara at the relevant time. The aforesaid Akhara/society of Mahants and Sanyasis known as Dashnam Naga Sanyasi Shree Panchayati Akhara Mahanirmani, Daraganj, Allahabad (in short "Panchayati Akhara, Allahabad") has branch offices in other cities. There were three secretaries namely; Mahant Onkar Puri, Mahant Ram Narain Giri and Mahant Yogendra Giri, who were managing the affairs of the aforesaid Akhara. This Akhara is basically managed by one society of Mahantas known as Ramta Pandey and Shambhu Panch, situated at Shivala Ghat, Varanasi, who passed the resolution dated 1 and 3 April, 1993 empowering the senior most secretary Mahant Onkar Puri, to sold some property Araji No. 217 and 218 situated at Bakshi Uprahar, Pargana, Tehsil Chail, District Allahabad.
3. Negotiations with interested parties were initiated but Mahant Onkar Puri sustained fracture in both legs compelling him to take rest at Mumbai. Therefore, he was constrained to execute sale deed dated 24.07.1996 in favour of purchasers at Mumbai, as power of attorney holder. This sale deed was registered before Sub Registrar, Mumbai. On the basis of the aforesaid sale deed registered at Mumbai, purchasers of the aforesaid plots applied for mutation before Nayab Tehsildar at Allahabad, as the property is situated at Allahabad. Nayab Tehsildar namely; Phool Chandra Arya, applicant mutated the property vide order dated 10.03.1997. This mutation was challenged by certain persons. The mutation order was recalled by the applicant. This recall order was challenged before the Additional Commissioner, Allahabad Division, Allahabad who vide order dated 23.06.1997 held that mutation had rightly been done and made reference to the Board of Revenue but Board of Revenue came to the conclusion that subsequent to 1994, no mutation can be done on the basis of the sale deed registered outside the jurisdiction.
4. It is stated that subsequent to 23.09.1994 mutation cannot be done on the basis of the sale deed registered outside the State, therefore, First Information Report (in short "FIR") was lodged against the purchaser as Crime No. 271 of 1997 by one Divakar Anand Giri at Police Station George Town, District Allahabad for the offences under sections 419, 420, 467, 468, 471, 406 IPC and 13(1)(d) of the P.C. Act. The matter was ultimately investigated by the CBCID. Applicant as a Nayab Tehsildar had mutated the names of the purchasers but name of the Nayab Tehsildar was not mentioned in that FIR but during the investigation various persons including the applicant, were found guilty of the offences. Charge sheet was also filed against several persons but name of applicant did not figure in first charge sheet. Thereafter, second charge sheet dated 03.07.1997 was also submitted in which the name of the applicant also surfaced as accused. This charge sheet and subsequent proceedings, so far as they relate to applicant only, are under challenge before this Court.
5. Heard Sri Dilip Kumar, learned counsel for the applicant and the learned AGA for the State.
6. Learned counsel for the applicant submitted that prior to 23.03.1994 mutation was permissible on the basis of the sale deed executed in Mumbai and Delhi etc., but this provision was amended vide notification dated 23.09.1994 whereby it was provided that mutation cannot be done on the basis of the deed registered outside the State. In furtherance of his submission, learned counsel for the applicant has claimed that though the notification was promulgated on 23.09.1994 but it was not circulated to various authorities till 28.10.1999. He has claimed that notification was amended and provision was communicated to all the authorities by a G.O. Letter dated 28.10.1999 and by another letter dated 20.11.1999, which says that information had been given on 28.10.1999. Learned counsel for the applicant has submitted that the copies of these letters dated 28.10.1999, 20.11.1999 and 07.03.2000 have been placed on record as annexures 2, 5 and 6. He further contended that the applicant had in fact cancelled the mutation, which was later on affirmed by the Board of Revenue. He further submits that no offence of forgery/preparation of false documents/cheating etc., are made out against the applicant. Applicant was doing his job quite diligently and in accordance with law and that he might have made mistake but that mistake by itself cannot be treated as criminal offence unless specific evidence of corruption is found against him.
7. Learned counsel for the applicant has contended that allegations enshrined in the FIR as well as in the charge sheet, even if taken at their face value and accepted in entirety, do not constitute offences under sections 419, 420, 467, 468, 471, 406 IPC and 13(1)(d) of the P.C. Act. Thus, he argues that cognizance taken by the Special Judge concerned, is without any material on record.
8. Per contra, learned counsel for the respondents have claimed that original power of attorney dated 04.11.1985 was not on record before the Nayab Tehsildar and that record further reveals that there was no power of attorney in favour of Mahant Onkar Puri. He claims that one Chhavi Nath Pandey was, in fact, holding the power of attorney.
9. It was argued that the applicant did not peruse the original power of attorney while passing mutation order dated 10.03.1997. It is claimed that the mutation order was passed in high handed manner by flouting all judicial norms. It is further stated that several suits are pending for cancellation of the sale deeds. It is alleged that Ishtehar entry in Ishtehar register was entered on 14-15.03.1997 demonstrating that on 10.03.1997 it was not on record of file no. 152 of 1997 and it was post dated, which has been averred in paragraph 6 of the affidavit of Mahant Jogendra Giri filed along with the counter affidavit dated 27.01.2006. it is urged that the applicant in collusion of other co-acccused persons, mutilated, fabricated and altered the official record.
10. Learned counsel for the respondent has also denied that mutation had been cancelled by the applicant. It is urged that restoration application moved by deponent Mahant Jogendra Giri was in fact rejected by the applicant on 23.06.1997.
11. Submission on behalf of the respondent is that whether the illegal act committed by the applicant has been done willfully in order to facilitate a party or he had been actuated by corrupt motive are really questions of fact, which cannot be adjudicated at this stage.
12. The learned AGA and respondents also have repudiated the submissions made by the learned counsel for the applicant and contended that the applicant while posted as Nayab Tehsildar, Chail Sadar, Allahabad illegally conducted the mutation proceedings while the same had been barred by amendment in the Registration Act, 1908 vide notification No. 1466/Seventeen-VI-1-1(Ka) 17, 1994 dated 23.09.1994 whereby the provision for mutation of documents registered outside the State for the property situate within the State of Uttar Pradesh was deleted. They have further submitted that the Investigating Officer has collected sufficient credible evidence, demonstrating complicity of the applicant in the crime, therefore, it cannot be said that no offence is made out against the applicant at this initial stage.
13. Learned AGA has further argued that at this stage the disputed defence available to the applicant, cannot be considered for deciding the petition under section 482 Cr.P.C. The scope of exercising inherent power under section 482 Cr.P.C., is limited and cannot travel beyond the parameters, enshrined in the provision itself.
14. I have given thoughtful consideration to the rival contentions made by the learned counsel for both the sides and perused the material on record.
15. The record indicates that disputed facts are limited. There is no doubt that some property of the Panchayti Akhara, Allahabad was sold by one Mahant Onkar Puri on the basis of power of attorney. This sale deed was executed and registered at Mumbai. The mutation was claimed on the basis of the aforesaid sale deed, executed and registered at Mumbai by vendees of the sale deed. This mutation was allowed by the applicant, Phool Chandra Arya, the then Nayab Tehsildar, Chail, Allahabad. Later on, the said power of attorney of Mahant Onkar Puri and the sale deed executed and registered at Mumbai became involved in various litigations. A criminal case was also initiated by one Mahant, informant Anand Giri. An FIR was lodged against Sri Ram Manohar Mishra and Chhavi Nath Pandey for fraudulently disposing off the property of the Panchayti Akhara, Allahabad by fraudulent documentation without any lawful authority. This FIR, Crime No. 217 of 1997, under sections 419, 420, 467, 468, 471, 406 IPC and 13(1)(d) of the P.C. Act, Police Station George Town, District Allahabad was investigated. It is pertinent to point out that the name of of the applicant Phool Chandra Arya, the then Nayab Tehsildar, Chail is absent from the array of the accused in the FIR. However, after investigation, charge sheet was filed against several persons, including Ram Manhohar Mishra, Chhavi Nath Pandey, Sushma Mishra, Lavlesh Kumar, Shashank Kumar Shukla, Jadawati Devi, Lata Devi, Suman Devi, Mool Chandra Tiwari, Udit Narain Tiwari, Kumar Mishra, Vijay Shanker Tiwari, Rajdhar Mishra, Manoj Kumar Pandey, Krishnanand Shukla, Ashok Kumar Pandey, Ajit Kumar Pandey, Meera Devi, Savitri Devi, Lakshmi Devi, Uday Sharma, Nirmal Devi alias Kusum, Pushpa alias Seema, Sanjeev Kumar alias Munindra, Chhote alias Sanad Kumar, Satya Prakash, Jay Chandra Mishra, Anand Kumar Mishra, Sunil Kumar Mishra, Phool Chandra Sharma, Chintamani and Pradyumn Patil. The name of the applicant, Phool Chandra Arya was absent from this first charge sheet. Subsequently, the Investigating Officer filed another charge sheet against applicant, Phool Chandra Arya as well.
16. Now the only allegation against applicant Phool Chandra Arya is that he conducted mutation proceedings in his quasi judicial capacity on the basis of a sale deed, executed and registered at Mumbai, while the prevailing law did not permit it. It is pertinent to point out that prior to 23.09.1994, mutation proceedings were permissible for the properties sold and registered at Bombay (now Mumbai), Delhi, Calcutta (now Kolkata) and Madras (now Chennai). But the law was changed by an amendment brought in Registration Act 1908 and the provision, permitting mutation of immovable properties located within the State but sold and registered at Bombay, Delhi, Calcutta and Madras was deleted.
17. In this case, the property of Panchayti Akhara was located at Allahabad but the sale deed was executed and registered at Mumbai, therefore, it was impermissible to the applicant, the then Nayab Tehsildar to mutate the names of the purchasers on the basis of stated sale deed.
18. This Quasi judicial act of mutation has been held criminally liable by the Investigating Officer.
19. It is pertinent to mention that the applicant claims to have recalled the mutation order subsequently, though this recall was challenged before the Additional Commissioner, Allahabad Division, who vide order dated 23.07.1997 upheld the mutation. A reference on that behalf was made to the Board of Revenue and the Board of Revenue concluded that after 1994, no mutation can be done on the basis of the sale deed, executed and registered, outside of jurisdiction, in view of the amendment (supra). In the light of the aforesaid discussion, it is evident that applicant Phool Chandra Arya, the then Nayab Tehsildar has been booked only for mutating the disputed property in the names of the purchasers on the basis of the sale deed, registered at Mumbai. It is also evident that Phool Chandra Arya was acting in his official capacity in quasi judicial proceedings while conducting mutation proceedings. A suit, bearing No. 152 of 1997 under section 34 of the Uttar Pradesh Land Revenue Act 1901 was registered. 25 purchasers claimed mutation on the basis of the registered sale deed, executed and registered at Mumbai. The mutation was initially done. However, the applicant claims that later on he recalled the impugned mutation order, when he became aware of the amendment brought to the Registration Act (supra).
20. Learned counsel fo the applicant claims that at best it can be said that the Nayab Tehsildar passed a wrong order and this order could have been challenged and was, in fact, challenged before superior forums. Nayab Tehsildar cannot be held criminally liable merely because a wrong order was been passed. He further claims that though a new amendment had been brought in the Registration Act, 1908 in the year 1994 but this notification was never publicized to the subordinate staff of the State Government. He claims that the Uttar Pradesh Government widely publicized this notification informing various authorities vide letter dated 28.10. 1999 (annexure 2). It is also argued that another letter was sent on 20.11.1999 (annexure 5) on behalf of the State of Uttar Pradesh, wherein the earlier letter dated 28.10.1999 was referred. Learned counsel for the applicant concludes that it demonstrate that even the State Government was aware that the amendment of 1994 was first circulated on 28.10.1999.
21. Learned counsel for the applicant argues that it indicates that no one was aware of the amendment of 1994, therefore, the applicant cannot be held responsible for the disputed mutation, as he was not aware of the amendment.
22. I am afraid the argument of lack of knowledge of amendment of 1994 in Registration Act, 1908 cannot be considered. Appicant, as Revenue Officer, was duty bound to know the Revenue law and the latest position thereof. It is incumbent upon all the Officers to be aware of the latest law. Lack of knowledge of law cannot be treated as defence but the question is, can a judicial or quasi judicial officer be held criminally liable for passing a wrong order? It is one thing, not to know the law or the latest position of law but it is altogether different, to make a wrong interpretation of law. A wrong interpretation of law can be a ground for appraising the worth of that particular official/officer in departmental proceedings but can a wrong interpretation of law or mistake in quasi judicial adjudication result in criminal prosecution? An order was passed by the applicant in revenue proceedings. The order was indeed against the prevailing law. To this extent, the facts are not disputed but the question arises can a Presiding Officer, in quasi judicial adjudication, be punished in criminal proceedings merely for passing a wrong order without any evidence of dishonesty and conscious disregard to his obligation?
23. I am afraid, criminal prosecution cannot be initiated on a vague and indefinite allegation. Suspicion has no role to play in such matter. There must be some reasonable and satisfactory material to proceed against the officer/official. If every error of law is to constitute a criminal offence, it would demolish the independent functioning of quasi judicial officer, like the applicant. It is pertinent to point out that crux of the allegation against the applicant is that he had committed error of law. There is absolutely no material to demonstrate that he committed any misconduct deliberately for extraneous considerations.
24. In Ramesh Chandra Singh v High Court of Allahabad and another [2007(4) Supreme Court Cases 247], the Apex Court has disapproved the practice of initiating disciplinary proceedings against the officers of subordinate of judiciary, merely because their judgements and orders are wrong. In the aforesaid case, a judicial officer was punished for granting bail and a departmental and judicial proceedings culminated in reversion of the officer to lower rank. The Apex Court disapproved the entire proceedings and quashed them. It held as under:
"Para 12: "This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, the High Court must take extra care and caution."
25. In the instant case, departmental proceedings were perhaps not initiated. The applicant has been criminally charged for passing a wrong order, which could have been corrected by superior forums and indeed, was corrected by the Board of Revenue. The disputed order lost its value.
26. I am afraid, the applicant, as Nayab Tehsildar was competent and authorised to deal with the mutation proceedings and that he passed a wrong order in the teeth of 1994 amendment to the Registration Act, 1908 is also apparent. This instance, along with other conduct could have been and can still be a good ground for assessing his worth in the services. Such appraisals of officers and officials in departmental proceedings are part of their official lives but such officer/official can not be held criminally liable for merely passing a wrong order without any material to demonstrate that such order was passed deliberately for extraneous considerations or for oblique purposes. The question of malafides/oblique motive or extraneous considerations are questions of fact and they have to be demonstrated by collecting legally admissible and satisfactory evidence Wrong exercise of jurisdiction or mistake of law or wrong interpretation of law by a quasi judicial authority cannot be a basis for initiating criminal cases unless there is material to demonstrate deliberate misconduct and malafide or consideration in discharge of his official duties or that such officer had acted in a manner to unduly favour a party or has passed a wrong order actuated by corrupt practice.
27. Coming back again to the facts of the present case, it is evident that more than 42 witnesses have been cited by the prosecution in support of their charge sheet. The statements recorded by the Investigating Officer are available on record. Supplementary affidavit dated 17.01.2006 contains all these statements recorded by the Invetigating Officer. Out of these vast number of witnesses (as many as 37 witnesses, including Vasudev Giri, Mahant Kalyan Giriji, Sri Nagendra Giri, Mahant Jageshwar Giri, Mahant Jitendra Giri, Gajanan Giri, Ram Manohar Mishra, Vinod Kumar Pandey, Rajesh Kumar Pandey, Lalta Prasad Pandey, Sri Surya Bali Pandey, Har Kumar Mishra, Mool Chandra Tiwari, Kashi Nath Vishwanath, Sub Registrar Havel no. 2, Sri Chhavi Nath Pandey, Purchaser, Mool Chand Tiwari, Smt. Javitri Devi (Savitri Devi) Sri Roop Narayan Puri, Purchaser Meera Devi, Smt. Sita Devi, Vijay Shanker Tiwari, Udit Narayan Tiwari, Ram Manohar Mishra, Tulsi Ram Tripath, Suraj Narain Sharm, Udai Sharma, Smt. Kusum Shukla, Chhot alias Sanat Kumar, Smt. Suman Devi, Jai Chand Mishra, Lavlesh Kumar, Smt. Lakshmi Devi, Ram Chandra Pandey, Sri Abhay Raj, Panchayti Raj Officer, Jai Chandra Mishra and Diwakar Tripathi have not even named the applicant Phool Chandra Arya in their statements. They have not given any material against Phool Chandra Arya. Surprisingly, even the informant Mahant Anand Giri, the main witness of prosecution, in his first and detailed statement recorded by the Investigating Officer, did not name applicant Phool Chandra Arya. He narrated the entire story to the Investigating Officer. He levelled various allegations against various persons but did not level any allegation against applicant Phool Chandra Arya. Meaning thereby, that as many as 37 witnesses, simply did not even name applicant Phool Chandra Arya.
28. It is, however, pertinent to point out that informant Mahant Anand Giri, thereafter, in his second statement recorded under section 161 Cr.P.C. did name the applicant. In his second statement he made bald allegation that applicant Phool Chandra Arya, the then Nayab Tehsildar conducted the mutation proceedings for illegal gratification. Surprisingly, the same allegation was again levelled against Additional Commissioner, Allahabad Division but no material and evidence has been disclosed by the informant Mahant Anand Giri for levelling these allegations. In fact, no source of information, knowledge and evidence for supporting these allegations was disclosed. A simple bald allegation was levelled that the mutation was done by applicant Phool Chandra Arya for extraneous consideration. The Apex Court in 'Ramesh Chandra Singh (supra)' has disapproved the action on the basis of this kind of bald allegation. In Ramesh Chandra Singh case (supra), specific allegation was levelled that a bribe of Rs. 80,000/- was paid to the concerned judicial officer without showing any evidence.
29. In the instant case, informant Mahant Anand Giri did not make any allegation against the applicant in the FIR and thereafter he did not even name him in the first statement to the Investigating Officer. He did, however, hurled casual and bald allegation in his second statement to the Investigating without giving details or providing any material.
30. One Mahant Joginder Giri also named the applicant Phool Chandra Arya in his statement surprisingly, in a very detailed statement very simple, limited and bald allegation was levelled against the applicant that he was complicit in mutating the names of the purchasers on the basis of the disputed sale deed but again no material was shown by this witness. In fact, both Mahant Anand Giri and Mahant Joginder Giri have merely given their opinions instead of providing any hard evidence.
31. Another witness namely; Sri Ram Narayan Giri also named Phool Chandra Arya, the applicant, in passing manner. His detailed statement was recorded but as far as the applicant is concerned, he merely stated that he could not gather any information about him and that applicant passed wrong mutation order. Other than this, no reference was made of applicant Phool Chandra Arya. This again, is merely an opinion rather than any fact.
32. Perusal of statements of as many as 40 statements, would disclose, that as many as 37 witnesses did not even name the applicant Phool Chandra Arya. One witnesses, namely Mahant Anand Giri, the informant, did not name him initially. His first statement recorded by the Investigating Officer does not disclose the complicity of the applicant. Two witnesses namely, Mahant Joginder Giri and Ram Narayan Giri have not provided any material against the applicant. They did not refer to any evidence or source of their knowledge but have made reference of the applicant in a casual manner by expressing their opinions that he had conducted mutation proceedings with malafides. Only one witness, Mahant Anand Giri, the informant, has levelled some allegation against the applicant but even this witness did not even whisper the name of the applicant during his first detailed examination by the Investigating Officer. At the time of his second statement, he levelled allegation that the applicant had passed the mutation ordere for extraneous considerations but he failed to give any source of this information. He has not disclosed or provided any material to support this bald allegation. Apex Court in 'Ramesh Chandra Singh' (supra) case, has disapproved taking of such bald allegation into consideration, without support of any material or evidence, even in departmental proceedings. These, in fact, are criminal proceedings, where material must demonstrate even at the initial stage, complicity of accused in the stated crime, which is totally absent in the present case.
33. Prosecution has submitted charge sheet against the applicant under sections 419, 420, 467, 468, 471, 406 IPC and 13(1)(d) of the P.C. Act, Police Station George Town, District Allahabad. A bare perusal of record would disclose that the applicant has not been accused of making a false document, as defined under section 464 IPC. Making of false document is a condition precedent for the offence under sections 467, 468 and 471 IPC. There is no allegation much less evidence to show that any false document was prepared by the applicant, therefore, the offence under sections 467, 468 and 471 IPC are not attracted at all. [Mohammad Ibrahim v State of Bihar [(2009) 8 Supreme Court Cases, page 751].
34. Similarly, for attracting ingredients of sections 419 and 420 IPC inducement to deliver property to any person or to make, alter or to destroy whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security is essential. Fact of the matter is that the sale deed was executed and registered at Mumbai between the vendors and vendees. There is no allegation that the applicant was present at Mumbai at the relevant time. The entire evidence discloses no action on the part of the applicant except conducting mutation proceedings under the Revenue law, subsequent to the application made by the purchasers. There is no material involvement of the applicant in execution and registration of deed. Ingredients of section 415 IPC are totally absent, it cannot be said that the offences punishable under sections 419 and 420 IPC are made out against the applicant. The role of the applicant has been delineated by the prosecution itself and his role is limited to mutation proceedings only. There is, in fact, no allegation or whisper that prior to mutation proceedings the applicant was involved with any party at all.
35. As far as that leaves only offence under section 13(1)(d) of P.C.Act, a bare perusal of section 13(1)(d) of P.C. Act would reveal that public servant can only be prosecuted under aforesaid provision, if he by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage, or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
36. There is absolutely no whisper that the applicant obtained any valuable thing or pecuniary advantage by abusing his position as public servant or by using his office for the said advantage. Such allegations are virtually absent, therefore, the applicant cannot be prosecuted under section 13(1)(d) of P.C.Act.
37. In the light of the aforesaid discussion, this Court is of the view that if it is a fit case where this Court has to exercise its extraordinary inherent jurisdiction under section 482 Cr.P.C. to quash the impugned charge sheet, so far as only applicant is concerned.
38. The instant application filed under section 482 Cr.P.C. is, accordingly, allowed. The charge sheet in Crime No. 271 of 1997, under sections 419, 420, 467, 468, 471, 406 IPC and 13(1)(d) of the P.C. Act, Police Station George Town, District Allahabad pending before the Special Judge (Anti Corruption), Varanasi, so far as it relates to applicant Phool Chandra Arya only, is quashed.
40. Proceedings against other accused can continue.
Order Date :-25.05.2016 shailesh