2. A.Gunasekaran (R2 impleaded as 2nd respondent as per the order of this Court dt:09.11.2009 in M.P.No.3 of 2009) .. 2nd Respondent in Crl.R.C.No.992 of 2009
2.P.Rathinam @ Rathinavel (R2 impleaded as 2nd respondent as per the order of this Court dt:09.11.2009 in M.P.No.3 of 2009) .. 2nd Respondent in Crl.R.C.No.993 of 2009 PRAYER : Revisions have been preferred under
Sections 397 and
401 of Criminal Procedure Code to set aside the order passed in his discharge petition filed under
Section 245 of Cr.P.C. before the Judicial Magistrate No.II, Erode in Crl.M.P.Nos.1639 & 1640 of 2008 on 25.09.2009 and allow the same.
Heard the learned counsel appearing for the petitioner/defacto complainant and the learned counsel appearing for the respondents 1 and 2. Considering the facts and circumstances of the case, the impleading petition in M.P.Nos. 3 & 3 of 2009 in both the Crl.R.C.Nos. 992 and 993 of 2009 are ordered and the defacto complainants have been impleaded as second respondents in both the Criminal Revisions.
2.In both the cases the petitioner herein has been arrayed as A2 and both the cases are similar in nature wherein the petitioner has been charged under
Sections 466,467,420 read with 109 IPC. The case in C.C.No.592 of 2007 was taken on file, on the complaint given by the defacto complainant/A.Gunasekaran arrayed as second respondent in Crl.R.C.No.992 of 2009. The case in C.C.No.591 of 2007 was taken on file on the complaint given by the defacto complainant/P.Rathinam alias Rathinavel who has been arrayed as second respondent in Crl.R.C.No.993 of 2009.
3.Challenging the order dated 25.09.2009 made in Crl.M.P.No.1639 of 2008 on the file of the Judicial Magistrate-II, Erode, these two revisions have been preferred by the petitioner/A2. It is not in dispute that the petitioner herein has been arrayed as A2 in a case pending in C.C.No.592 of 2007 that was registered under
Sections 466,467,468,420 read with 109 IPC. The petitioner herein had filed the Criminal Miscellaneous Petition before the trial Court under
Section 265 of the Code of Criminal Procedure Code seeking an order of discharge that was dismissed by the Court below on the ground that there is a prima facie case made out against the petitioner/A2. Aggrieved by which, these Criminal Revisions have been preferred by the petitioner.
4.Mr.V.Vijay Kumar, learned counsel appearing for the petitioner/A2 submitted that there is no prima facie case made out against the petitioner, however, the court below dismissed the petition filed by the petitioner. As per the prosecution case, during the year 1998 one E.K.Palanisamy(A1) prepared a forged Will dated 22.12.1986 in the name of one Vinayathammal in his favour. The Will was registered by way of impersonation by the said co-accused, E.K.Palanisamy/A1. He had also forged a Registered Power of Attorney deed dated 28.01.1987 as if the deed was executed by the said Vinayathammal in his favour. The petitioner/A2 herein, while he was working as Tahsildar, Erode Taluk in the year 1984, based on the forged Will and the Power of Attorney Deed produced by A1, had fraudulently transferred the patta in the name of A1 on 07.11.1984, without verifying the genuiness of the forged Will, Power of Attorney Deed and other connected records, and thereby the petitioner/A2 committed an offence punishable under
Sections 464,467,468,420 read with 109 IPC.
5. Learned counsel appearing for the petitioner/A2 further submitted that the petitioner has not issued any forged or fake patta transfer certificate as alleged by the prosecution. According to him, the Deputy Tahsildar alone had the power of Transferring patta and the Tahsildar has no power to transfer the patta in the name of A1. According to the learned counsel appearing for the petitioner/A2, he has not committed any offence but only discharged his official duty, as per the rule prescribed in the Rules and under the standing orders. The petitioner herein attain Superannuation on 31.07.1994 and the case in Crime No.1776 of 1999 was registered by the respondent police after his retirement and after nine years of investigation, the respondent police filed the final report before the Judicial Magistrate No.II, Erode on 23.11.2007. Based on the final report, the petitioner was arrayed as accused No.2 in the case and the learned Judicial Magistrate No.II, Erode, summoned the petitioner/A2.
6. Learned counsel appearing for the petitioner/A2 drew the attention of this Court to
Section 197 of the Code of Criminal Procedure and argued that there was no sanction from the Government to prosecute the petitioner/A2 though the provision is applicable to a retired public servant.
Section 197 of the Code of Criminal Procedure reads as follows:
"When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-"
7.Per Contra, Mr.R.Sivaprakasam, learned counsel appearing for the second respondent/defacto complainant contended that Tahsildar is not a public servant, as per
Section 197 of the Code of Criminal Procedure since appointing authority of the said officer is not a Government and he is only subordinate to the District Collector. Learned counsel also relied on the decision in A. Chidambaram vs. State rep. By S.P.E., C.B.I., A.C.B., Madras reported in 1998 (1) (Crl.) L.W.274 wherein this Court has held thus;
"obtaining of sanction is not necessary when accused ceased to be a public servant on the date of filing of the charge sheet, but in the absence of suspicion against the petitioner based on documents and witnesses, accused cannot be made party to conspiracy for offences committed prior to his joining duty."
8.In the instant case, even as per the pleadings of the petitioner he had retired from service as Tahsildar on 31.07.1984 prior to the filing of the charge sheet and therefore, this Court is of the view that no sanction of Government for prosecuting the proposed party/A2, is required under
Section 197 of the Code of Criminal Procedure. The second contention raised by the learned counsel appearing for the petitioner is that no prima facie case has been made out against the petitioner. According to the learned counsel earlier there were civil proceedings by the defacto complainant and there were revenue proceedings subsequently, the defacto complainant filed the complaint against the petitioner/A2 and others. In support of his contention, learned counsel also drew the attention of this Court to the statement of A.Gunasekaran, the defacto complainant, that was recorded on 30.12.2005, wherein, he has admitted that he filed a suit in O.S.No.154 of 1999 seeking permanent injunction in respect of land in Old T.S.No.1369 and New T.S.No.19(90) before the District Munsif Court, Erode. The said suit has been filed by A1, before the District Munsif, Erode and the same was dismissed on 10.10.2000 and the said Palanisamy had also preferred appeal before the Special Commissioner and Commissioner for Land Reforms, Chennai against the order passed by the revenue authorities.
9.In support of his contention, learned counsel also relied on the decision in Gauri Shankar Prasad vs. State of Bihar and another reported in 2000 Crl.L.W.4031 wherein the Honourable Apex court has held as follows:
"it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under
Section 197, Cr.P.C. Therefore, the High Court erred in holding that
Section 197, Cr.P.C. is not applicable in the case."
10.However, the above said principle laid down by the Apex Court is not applicable to the facts and circumstances of this case. This Court in the decision in P.Palanisamy and another vs. Shenbagathottam Residents Association, Madurai reported in 2002 Crl.L.J.704 in paragraph 10 has held as follows:
"It is therefore, evidently cleat that so far as this case is concerned the petitioners are also public servants and they can be removed from the office only subject to the approval of the Government. Unfortunately, this has been lost sight of by the Court below and mechanically came to the conclusion that they can be removed by the Board and no approval by the State Government is necessary. This is an erroneous approach of the legal position by the Court below and, as such for want of sanction, the complaint is not maintainable before the Court, and as such, the points are answered accordingly."
In the light of the decision for prosecuting the petitioner/A2, a retired Tahsildar, as per
Section 197 of Code of Criminal Procedure, no sanction is required and therefore the defence raised by the petitioner/A2 is not legally sustainable.
11. Mr. R.Sivaprakasam, learned counsel appearing for the second respondent submitted that on the date of issuing patta Vinayathammal was alive. However, without considering the same, based on the forged Will, patta was changed in the name of A1 by the petitioner/A2 and further drew the attention of this Court to the expert opinion. The disputed finger impressions available in the alleged Will and the Power of Attorney Deed were compared along with the admitted thumb impression of the deceased Vinayathammal. As per expert opinion, the thumb impression available in the alleged Will and the Power of Attorney Deed were entirely different from the admitted thumb impression of Vinayathammal. Accordingly, the disputed thumb impressions are decided fake and forged thumb impressions.
12.Learned Government Advocate (Crl.side) appearing for the first respondent submitted that there is a prima facie case made out as against the revision petitioner/A2, since he had issued change of patta in favour of A1, based on the forged Will of Vinayathammal though she was alive on the said date. Even without verifying the factum whether the testatrix was alive or not, through a village administrative officer or the Revenue Inspector, the petitioner/A2 had issued orders for change of patta and therefore there is a prima facie case against the petitioner/A2 as stated by prosecution.
13.Learned counsel appearing for the petitioner contended that in the connected cases relating to Crl.R.C.No.993 of 2009 no Will was produced only Power of Attorney Deed was produced by A1. However, it was found that the thumb impression available both in the power of Attorney Deed as well as in the registered Will were forged and registered by way of impersonation. As contemplated under
Section 227 of the Code of Criminal Procedure, to seek an order of discharge, the petitioner who is seeking the order should establish that there is no prima facie case made out. Similarly, the petitioner/accused cannot seek an order discharging him from the alleged offence when there is prima facie case made out. In the instant case, it is not in dispute that patta was changed in the name of co-accused/A1 by the petitioner/A2 based on a forged Will and forged power of attorney deed while the testatrix was alive. As per the prosecution case, in pursuance of the conspiracy between the petitioner/A2 and the co-accused the offence was committed.
14.In the decision in Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau reported in 2001 SCC 138 the Honourable Supreme Court has held thus:
" at the time of framing of charges, the court need not deeply examine the probational value of the materials on record. If on the basis of such material the court can come to the conclusion that the accused being committed the offence, the Court is obliged to permit the charge as per
Section 228,246 and
227 of the Code of Criminal Procedure"
15.In the decision in State of Maharashtra and Others vs. Som nath Thapa and Others reported in 1996 (4) SCC 659 the Full Bench of the Honourable Apex Court has held as follows:
"if there is ground for presuming that the accused has committed the offence it can be said that a prima facie case has been made out against the accused. Even if the Court thinks that the accused might have committed offence it can frame the charges at the stage of framing of charge probative value of the materials on record cannot be gone into".
16.The following decision are referred to regarding sanction:
State of Himachala Pradesh vs. M.P.Gupta reported in 2004(1) L.W.358 it is held by the Honourable Apex Court, thus:
"the correct legal position is that the accused facing prosecution cannot claim immunity on the ground of want of sanction, if he ceased to be a public servant, on the date when the Court took cognizance of the said offence."
17.In the light of the various decisions of the Honourable Apex Court as well as this Court, it is made clear that at the stage of framing of charges, the Court is not expected to go deep into the probative or evidentiary value of the materials on record, on the basis of the materials available on record, the Court can come to the conclusion that accused could have committed offence, the Court has to frame charges and proceed to trial. In the present case, the petitioner/A2 has issued transfer of patta in favour of the co-accused/A1 based on a registered forged Will and a forged power of attorney deed. Despite the fact that the person said to have executed the Will was alive. The petitioner being Tahsildar having sufficient infrastructure to verify, whether the testatrix was alive or not had transferred the patta in the name of the co-accused/A1, for the reasons best known to him. Similarly in the connected case based on the forged Power of Attorney Deed, the petitioner/A2 had issued change of patta. The thumb impression available in the registered Will and the Power of Attorney Deed with the admitted thumb impression of Vinayathammal were sent for expert opinion and the fact was unearthed and the offence of forgery was brought to light. As it is forgery in a registered document, the offence of impersonation is also made out at this stage, the Court cannot presume that the petitioner/A2 who was a responsible officer having sufficient infrastructure had innocently transferred the patta, in the name of the co-accused/A1.
18. On the aforesaid facts and circumstances, the Court cannot presume that there is no prima facie case made out against the petitioner/A2. Based on the material available on record the court cannot decide the probative value of the material available and decide that there is no prima facie case made out against the petitioner/A2. As held by the Honourable Supreme Court, in the decisions referred to above, at the stage of framing charges, the Court is not expected to go deep into the probative and evidentiary value of the materials available on record. In the instant case, as discussed earlier, and held by the Court below, there is a prima facie case made out as against the petitioner/A2. Hence, I am of the view that there is no need to interfere with the impugned order passed by the Court below, at the stage of the case. Accordingly, these Criminal Revision Petitions are dismissed. However, the Court below is directed to dispose of the cases pending solely on merits, uninfluenced by the findings of this Court in these Criminal Revision Petitions, as early as possible, preferably within three months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed.
Smi To
1.The Judicial Magistrate No.II, Erode
2.The Public Prosecutor, High Court, Madras