Balodabazar-Bhathapara, Chhattisgarh v. 1 - State Of Chhattisgarh Through The Station House OfÏcer, Police Station Pithora, District
Case Details
1 2025:CGHC:6118 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 956 of 2018 Gopal Pradhan S/o Late Shri Vishnucharan Pradhan Aged About 50 Years R/o Village Rangora, Tahsil Kasdol, District Baloda Bazar- Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh --- Petitioner(s) versus 1 - State Of Chhattisgarh Through The Station House OfÏcer, Police Station Pithora, District Baloda Bazar-Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 2 - Shiv Kumar Tiwari S/o Late Ramapati Tiwari Aged About 47 Years R/ o Ward No. 8 Purani Basti, Pithora, District Mahasamund Chhattisgarh Respondent /accused No. 1, District : Mahasamund, Chhattisgarh 3 - Bainjamin Sikka S/o Ishwarram Sikka Aged About 42 Years R/o Lakhagarh Police Station Pithora, At Present R/o Gayatrinagar, House No. 26, Telibandha, Raipur District Raipur Chhattisgarh Respondent /accused No. 2, District : Raipur, Chhattisgarh 4 - Rameshwar Chouhan S/o Bharatlal Chouhan Aged About 52 Years R/ o Village Dongripali, Pithora, District Mahasamund Chhattisgarh Respondent /accused No. 3, District : Mahasamund, Chhattisgarh RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN Date: 2025.02.13 11:12:57 +0530 2 5 - Santram Sonwani S/o Late Ghasiram Aged About 58 Years R/o Sevaiyakala, Police Station Pithora, District Mahasamund Chhattisgarh Respondent /accused No. 4, District : Mahasamund, Chhattisgarh 6 - Ghasiram S/o Rajaprajapati Aged About 52 Years R/o Ward No. 4 Ravanbhatapara, Pithora, District Mahasamund Chhattisgarh Respondent /accused No. 5, District : Mahasamund, Chhattisgarh 7 - Karan Chandrakar S/o Ramkhilawan Chandrakar Aged About 62 Years R/o Purana Ravanbhatapara, Raipur Road Mahasamund, Police Station Kotwali, District Mahasamund Chhattisgarh Respondent /accused No. 6, District : Mahasamund, Chhattisgarh --- Respondent(s) For Petitioner(s)
Legal Reasoning
petitioners with the allegations and no prima facie case is made against the petitioners and there is no incriminating evidence collected by the prosecution to implead the petitioners with the present crime. If the documents and the evidence collected by the police will be accepted for the sake of arguments, even then no offence would be made out. The Magistrate has virtually exercised the powers under Section 319 of the Code of Criminal Procedure and has directed to add the names of the petitioners 11
Arguments
: Mr. Manoj Paranjpe, Advocate. For Respondent(s) No.1 / : Mr. U.K.S. Chande, Dy, Advocate General. State For Respondents : Ms. Renu Kochar, Malay Shrivastava, Sajal K. Gupta, Advocates. CRMP No. 1042 of 2018 K.D. Vaihnaw S/o S/o Late Ishwar Das Vaihnaw, Aged About 64 Years R/ o Professor, Colony H. N. 125 District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh ---Petitioner(s) Versus 1 - State Of Chhattisgarh Through S.H.O. Pithora, District- Mahasamund, Chhattisgarh. 2 - Shiv Kumar Tiwari, S/o S/o Late Ramapati Tiwari, Aged About 47 Years R/o Ward No. 8 Purani Basti Pithora, District- Mahasamund, Chhattisgarh. Respondent/Accused No. 1. 3 3 - Bainjamin Sikka S/o S/o Ishwar Ram Sikka, Aged About 42 Years R/ o Lakhagarh, Police Station Pithora, At Present R/o Gayatrinagar, House No. 26, Telibandha, Raipur, District- Raipur, Chhattisgarh. Respondent/ Accused No. 2. 4 - Rameshwar Chouhan, S/o S/o Bharatlal Chouhan Aged About 52 Years R/o Village Dongripali, Pithora, District- Mahasamund, Chhattisgarh. Respondent/Accused No. 3. 5 - Santram Sonwani, S/o S/o Late Ghasiram R/o Sevaiyakala, Police Station Pithora, District- Mahasamund, Chhattisgarh. Respondent /accused No. 4. 6 - Ghasiram S/o S/o Rajaprajapati Aged About 52 Years R/o Ward No. 4, Ravanbhatapara, Pithora, District- Mahasamund, Chhattisgarh. Respondent /accused No. 5. 7 - Karan Chandrakar, S/o S/o Ramkhilawan Chandrakar, Aged About 62 Years R/o Purana Ravanbhatapara, Raipur Road, Mahasamund, Police Station Kotwali District- Mahasamund, Chhattisgarh. Respondent/ Accused No. 6. --- Respondent(s) For Petitioner(s) : Mr. Sanjay Agrawal, Advocate. For Respondent(s) : Mr. U.K.S. Chande, Dy, Advocate General. No.1 /State For Respondents : Ms. Renu Kochar, Malay Shrivastava, Sajal K. Gupta, Advocates. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 03/02/2025 4 1. Heard Mr. Manoj Paranjpe as well as Mr. Sanjay Agrawal, learned counsel appearing for the applicants. Also heard Mr. U.K.S. Chandel, learned Deputy Advocate General, appearing for the respondent No. 1/State as well as Ms. Renu Kotcher, Mr. Malay Shrivastava and Mr. Sajal K. Gupta learned counsel appearing for the respondents. 2. The present petition has been filed by the petitioners seeking following prayer:- “It is therefore prayed that the Hon’ble Court may kindly be pleased to allow the instant 482 petition filed by the petitioners, quashing the order dated 13.04.2018, passed by the Judicial Magistrate First Class, Pithoura, District-Mahasamund (C.G.) passed in Criminal Case No. 454/2017, passed in the case of “State of Chhattisgarh vs. Shiv Tiwari and others in the interest of justice.” 3. Brief facts of the case are that one Khemin Bai wife of Raghunath was the recorded owner of the land bearing Khasra No. 897/1 situated at village Lahrod, Tahsil Pithora, District Mahasamund. The land of the petitioner was acquired for widening of the National Highway from Arang Saraipali section. The notification under Sections 3A & 3D of the National Highway Act 1956 was issued and subsequently the award was passed. The amount of the award was deposited in the account of Khemin Bai. It is 5 alleged that once Shiv Kumar Tiwari by playing fraud has obtained the thumb impression of Khemin Bai and has obtained the said amount. The report was made to the Sub-Divisional Officer (Revenue) Pithora and the Sub-Divisional Officer (Revenue) Pithora has conducted the inquiry and made a written complaint to Police Station Pithora on 29.09.2016. Simultaneously, the Sub-Divisional Officer (police) has also conducted the inquiry and in the said inquiry it was found that Khemin Bai was not the owner of the land acquired for widening of the National Highway and she has been made the scrap board. On the basis of the said inquiry report, the police has investigated the matter and lodged the F.I.R. on 04.04.2017 against Shiv Kumar Tiwari vs. Ramapati Tiwari the police has investigated the matter and taking into consideration the report of the Sub- Divisional Officer (Revenue) and the report of the Sub-Divisional Officer (police) has filed the charge-sheet before the Court of Judicial Magistrate First Class Pithora on 13.12.2017. The charge-sheet was filed against five accused persons namely Shiv Kumar Tiwari (who obtained the amount by playing fraud), Bainjamin Sikka (the then Patwari), Rameshwar Chouhan (the then Kotwar), Santram Sonwani (the then Kotwar), Ghasiram (peon of Court of Tahsildar Pithora). While filing the charge-sheet the police has categorically recorded that so far as the involvement of the petitioner namely Gopal Pradhan, who was Patwari at the time of acquisition of land, Karan Chandrakar, 6 Patwari and K.D. Vaishnav, Sub-Divisional Officer is concerned, the investigation is in process and if any material would be found against these three persons, the supplementary charge-sheet under Section 173(8) of Code of Criminal Procedure will be filed. 4. After filing of the charge-sheet, the police have further investigated the matter and ultimately on 15.03.2018 has filed the supplementary charge-sheet against Patwari Karan Chandrakar son of Ramkhilawan Chandrakar and in the said supplementary charge sheet, it was categorically mentioned that no incriminating material has been found against the petitioner namely Gopal Pradhan and Sub-Divisional Officer K.D. Vaishnav. The police have conducted the further inquiry recorded the statement of the witnesses collected the materials and ultimately reached to the final conclusion that there is no material to substantiate the allegations against the petitioners and therefore no charge-sheet can be filed. 5. The said supplementary charge-sheet was filed before the Judicial Magistrate First Class, Pithora. The Judicial Magistrate First Class has accepted the supplementary charge-sheet so far as it relates to accused Karan Chandrakar is concerned and has refused to accept the final report so far as it relates to the petitioners are concerned and the Magistrate has passed an order on 16.03.2018 and it was observed that so far as taking of cognizance under Section 190 Code of Criminal Procedure is concerned, the separate decision will be taken. The Magistrate 7 has also directed the concerned investigating officer to produce the documents pertaining to the duties and obligations of the officers/employees, who are involved in preparation of Prapatra- 10 under the National Highway Act, 1956. Thereafter the matter was listed before the Magistrate on 13.04.2018 and on the said date, the Magistrate has passed the final order and it has been directed to record the names of the petitioners in the charge- sheet and the cognizance has been taken by the Magistrate. The Magistrate while passing the impugned order has held that so far as the petitioner Gopal Pradhan who was posted there as Patwari is concerned, he has prepared Prapatra-10 after deciding the objection under Section 3D of the Act of 1956 and it was further held that the Ikrarnama dated 08.10.2014 executed by Khemin Bai was signed by the Patwari as a witness (the Ikrarnama was executed in favour of the State Government and it was executed on 08.10.2014, though on the said date the petitioner Gopal Pradhan was working at Arang, and this fact is apparent on the face of the documents filed with the challan which shows the service tenure of each of the Patwari) and therefore they are also one of the accused and they have been added as an accused. 6. Learned counsel for the petitioners submits that if the entire allegations of the FIR would be taken at its fact value, no offence would be made out. They further submits that the learned Magistrate while passing the impugned order has failed to appreciate the well settled law as laid down by the Hon’ble 8 Supreme Court in the matter of “Sunil Bharti Mittal Vs. C.B.I.” They also relied upon the judgment passed by the Hon'ble Supreme Court in the matter of "Bholu Ram vs. State of Punjab" 2008(9) SCC 140, 2015(14) SCC 399 I.R.I.S. Computers Ltd. vs. Askari InfoTech Pvt. Ltd. and in the matter of Adalat Prasad vs. Rooplal Jindal 2004(7) SCC 338, Section 482 of the Cr.P.C. petition would lie against the said order. The Magistrate has passed the order without appreciating the fact that if the Magistrate is not satisfied with the report submitted by the police, then the remedy available with the Magistrate to exercise the powers to order for further inquiry. The Magistrate has virtually exercised the powers under Section 319 of Code of Criminal Procedure and has taken the cognizance under Section 190 of Code of Criminal Procedure. It is well settled by the judgment passed by the Hon'ble Supreme Court in case of Sunil Bharti Mittal vs. C.B.I. 2015(4) SCC 609 has held that sine quo non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations if proved would constitute an offence. It is therefore imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. Cognizance of an offence a prosecution of an offender are two different things. 9 Section 190 of the Code empowered taking cognizance of an offence and not to deal with the offenders therefore the cognizance can be taken, even if the offender is not known or named when the complaint is filed or F.I.R. registered, their names may be transpired during investigation or afterwards. 7. Learned counsel for the petitioners submit that the learned Magistrate has failed to appreciate that person who have not joined as an accused in the charge-sheet can be summoned at the stage of taking cognizance under Section 190 of the Code and if the Magistrate feels that evidence and material collected during investigation justifies prosecution of the accused, they can exercised the said powers. At the same time, it is not permissible at the stage of taking cognizance to consider any material other than that collected by the investigating officer. They further submits that the Magistrate has committed gross illegality, while passing the impugned order directing to include/add the names of the petitioners in the charge-sheet. The Magistrate has no power to pass such an order. The Magistrate while passing the impugned order has failed to appreciate that even for taking of the cognizance, the sanction is mandatory, if the accused are government employee. Even if the reasons assigned in the impugned order will be accepted, the only allegation against the petitioners are that they have prepared Prapatra-10 after completion of the proceedings under Section 3A and 3D of the National Highway Act 1956. The Patwari is a competent 10 employee to prepare Prapatra-10 on the basis of the Collector guidelines and on the basis of the proceedings under Section 3A and 3D of the National Highway Act 1956. Meaning thereby petitioners being government employee were discharging their official duties and therefore the sanction before taking cognizance is mandatory. Even if the reasoning assigned in the impugned order will be taken at their face value, no offence would be made out, because the name of Khemin Bai was recorded in revenue records as well as it was recorded in Dayara Panji and in the notification under Section 3A and 3D. Taking into consideration the aforesaid documents, the petitioners have prepared Prapatra- 10 and has not committed any illegality. They further submits that the Investigating Officer has conducted the inquiry and it was found that there is no evidence on record to connect the present petitioners with the fraud or the forgery made by the main accused persons for entering the name of Khemin Bai in revenue records, there is no evidence is on record to connect the
Decision
and the impugned order is illegal, erroneous and contrary to law and is liable to be set-aside. 8. On the other hand, learned counsel appearing for the respondents opposes the submissions advanced by the counsel for the petitioners and supports the impugned judgment passed by the learned court below. 9. I have heard learned counsel for the petitioner and also perused the documents annexed with petition. 10. From perusal of the impugned order, it transpires that the trial Court is of the opinion that Patwari, in conspiracy with other individuals, fabricated government documents, which led to the passing of an award in the land acquisition proceedings. It is not possible for such fabricated documents to be used as the basis for the award without the involvement of the Land Acquisition Officer. The trial Court has also stated that there is sufficient evidence to summon the accused, K.D. Vaishnav and Patwari Gopal Pradhan, to stand trial. Therefore, the then competent authority/Land Acquisition Officer, K.D. Vaishnav, and Patwari Gopal Pradhan, are summoned as accused. Their names shall be included in the charge-sheet. A bailable warrant of Rs. 500/- each is issued for their presence and it was directed that the case is adjourned on 23.04.18 for the presence of the accused. After fully applying its mind the learned Judicial Magistrate First Class, Pithoura, District- Mahasamund (C.G.) has passed the impugned 12 order dated 13.04.2018 in Criminal Case No. 457/2017, which warrants no interference by this Court. 11.Considering the submissions advanced by the learned counsel for the petitioners, perusing the findings recorded by the trial Court and the material available on record, I am of the considered opinion that the trial Court has not committed any illegality, infirmity or any jurisdictional error while passing the impugned order. 12. Accordingly, the petition being bereft of any merit is liable to be and is hereby dismissed. Sd/- (Ramesh Sinha) Chief Justice Rahul Dewangan