High Court · 2012

Order

This Criminal Petition is filed by the petitioner under Section 482 Cr.P.C. to quash the proceedings in C.C. No.741 of 2007 on the file of the III Addl. Chief Metropolitan Magistrate, Vijayawada.

2. Police after completion of investigation filed charge sheet against the accused for the offences punishable under Sections 420, 466, 471 and 120-B r/w 110, 166 and 34 IPC alleging that the accused got the land registered by fraudulent means and the Superintendent of Police, Regional Vigilance and Enforcement Officer, Vijayawada conducted enquiry. During the course of investigation, it came to light that 317 fake NOCs for the period from 01-01-1993 to 31-03-1996 relating to an extent of 1,48,796.88 sq. yards of land that costs Rs.1,000/- per square yard, which amounts to Rs.14.88 crores was involved and the loss estimated to the Government is about Rs.7.80 crores. It is further alleged that the petitioner knowing fully well that the NOCs issued by the Urban Land Ceiling authority (for short ‘ULC’) are fake, got registered the documents causing loss to the Government. Hence, the charge sheet.

3. Learned counsel appearing for the petitioner contended that the main accused who created fake documents were deleted that under Section 197 Cr.P.C., no from the charge sheet, sanction has been taken to prosecute the petitioner, that under Section 86 of the Registration Act, 1908 (for short ‘the Act’), the accused is not liable for prosecution, that under Section 84 of the Act, the accused shall be deemed to be a public servant, that in similar circumstances, this Court in Crl.P.No.6216 of 2007 quashed the proceedings in respect of another Sub-Registrar, Bheemavaram, that as the original seals of ULC and fake seals appears to be one and the same, no mala fides can be attributed to the petitioner in registering the documents and hence, he prays to quash the proceedings.

4. On the other hand, learned Public Prosecutor contended that in respect of order in Crl.P.No.6216 of 2007, S.L.P. is filed before the Supreme Court and the same is pending, that sanction can also be given during the course of trial basing on the evidence whether the acts of the accused are done purporting to discharge of his official duties, that inherent powers under Section 482 Cr.P.C. can be invoked when there is no specific provision under Cr.P.C., that the Additional Director General of Police is also taking steps to challenge G.O.Ms.No.491, Revenue (Vig. III) Department, dated 16-04-2007 under which, the Government has given permission to withdraw the prosecution in respect of officials of the ULC, Vijayawada and hence, he prays to dismiss the criminal petition.

5. There cannot be any dispute that inherent powers under Section 482 Cr.P.C. can be exercised to prevent abuse of process of Court or to secure the ends of justice or to carry out the orders passed under this Code. If the uncontroverted allegations in the charge sheet and the statement of witnesses recorded by the police during the course of investigation do not make out prima facie case of the offences alleged, then only question of quashing the proceedings arises. The charges leveled against the petitioner are under Sections 420, 466, 471 and 120 (b) r/w 110, 166 and 34 IPC.

6. Necessary ingredients to constitute the offence of cheating which is defined under Section 415 I.P.C. are: (1) There should be fraudulent or dishonest inducement of a person by deceiving him, (2) (a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and (3) in cases covered by (2)(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. IPC whoever Under Section 466 forges a document purporting to be a record or proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant, in his official capacity, or an authority to institute or defend a suit, to or take any proceedings therein, or to confess judgment, or a power of attorney is liable for punishment. Under Section 471 IPC, whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, he shall be punishable. Section 120-B IPC prescribes punishment for criminal conspiracy. Necessary ingredients to constitute the offence of Criminal Conspiracy are as follows: “(a) Two or more persons agree to do or cause to be done an act. (b) The act agreed must be- (i)an illegal act or, (ii)an act which is not illegal but is done by illegal means (c) If the agreement is not to commit an offence then some act besides the agreement is- (i) by one or more parties to such agreement (ii) in pursuance of the agreement”

7. The allegations in the complaint would go to show that the petitioner knowing fully well that the NOCs issued by the ULC authority are fake, used the fake NOCs, registered the documents thereby causing loss to the State exchequer. It is also alleged that the Sub Registrar has to verify whether the NOC produced by the party bears the signature and the seal of the Special Officer of ULC and also the name of the vendor its genuineness comparing the same with the available NOC sent by ULC and other particulars of the land in question. After fully verifying the documents and after satisfying that the documents are genuine only, the Sub-Registrars have to register the documents. The accused did not verify about the NOCs whether they are genuine or not as they are colluded with the accused sellers of the properties.

8. Learned counsel for the petitioner placed reliance on the decision of this Court in Crl.P.No.6216 of 2007, dated 10-12-2007 wherein it is held that in the present case, the allegation against the petitioner-A14 is that while acting or purporting to act in discharge of official duties as Sub-Registrar, he failed to properly scrutinize the stamp papers and the entries in the concerned registers to detect the ante-dated nature of the stamps. It cannot be disputed that scrutiny of the stamps and verification of the concerned registers formed part of the official duties of the petitioner-A14.The alleged failure on the part of the petitioner to properly scrutinize the stamps and verify the registers is certainly an act or omission, which has reasonable connection with discharge of their official duty. Admittedly, the prosecution agency has not applied to the Government for sanction to prosecute the petitioner, who is a public servant within the meaning of Section 21 IPC. Since no sanction order is obtained to prosecute the petitioner, the proceedings against him is liable to be quashed. It is not disputed that previously this Court by order, dated 16-04-2007 allowed Crl.P.No.2007 of 2007 quashing the prosecution against the accused therein, who was also a Sub Registrar at Bheemavaram during the relevant period and the case of the petitioner also stands on the same footing.

9. That is a case where the Sub-Registrar therein failed to properly scrutinize the stamp papers and the entries in the concerned registers to detect the ante-dated nature of the stamps. But in this case, the petitioner knowing fully well that NOCs produced by the sellers are fake documents, used them as genuine documents for the purpose of registration. Hence, the above decision has no application to the present facts of the case.

10. The petitioner is a public servant within the meaning of Section 21 IPC. The legislative mandate engrafted in sub-section (1) of Section 197 Cr.P.C. is a prohibition imposed by the statute from taking cognizance. For invoking protection under Section 197 Cr.P.C., the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties and the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. For that purpose, learned Public Prosecutor relied on a decision reported in BHOLU RAM V STATE OF PUNJAB AND ANOTHER [1] , wherein it was held thus: “We express our inability to agree with the learned counsel. It is settled law that offences punishable under Sections 409, 420, 467, 468 and 471 etc can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while acting or purporting to act in discharge of official duty (vide Prakash Singh Badal v State of Punjab (2007) 1 SCC 1) The Revisional Court was aware of legal position. It was, however, held by the Court that at the most there was negligence on the part of respondent No.2 but there was no criminal intent and he cannot be held criminally liable. We have already held that mens rea can only be decided at the time of trial and not at the state of issuing summons. Moreover, a point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case. The order of the Revisional Court deserves top be set aside even on that ground.”

11. Immunity from prosecution without sanction extends only to acts which can be shown to be done in discharge of official duty or to purport to be done in such discharge; but an offence arising out of abuse of official position by an act not purporting to be official does not require sanction.

12. There cannot be any dispute that inherent powers under Section 482 Cr.P.C. can be exercised when there is no specific provision under Cr.P.C. When there is a provision to seek redressal of a party, then he has to avail that remedy in view of in MADHU LIMYA Vs STATE OF the decision reported [2] MAHARASHTRA , wherein it was held thus: “At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably barring a few exceptions:- (i) that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (ii) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice. (iii) That it should not be exercised as against the express bar of law engrafted in any other provision of the code”

13. Similarly, learned Public Prosecutor relied on another decision reported in PADAL VENKATA RAMA REDDY @ RAMU V KOVVUJRI SATYANARAYANA REDDY AND OTHERS was held thus: [3] , wherein it “It is well settled that the inherent powers under Section 482 Cr.P.C. can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code (Vide Kavita V State, 2000 Crl.L.J. 315 and B.S.Joshi V State of Haryana and another, 2003 (1) ALD (Crl).842 (SC) = (2003) 4 S675 = AIRT 2003 SC1386= 2003 AIR SCW 1824). If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.”

14. After filing of the charge sheet, case was taken on file for the above offences as the offences are cognizable and triable by following warrant procedure. Such is the case, the petitioner will get an opportunity to file an application under Section 239 Cr.P.C. for discharge, if no prima facie offences are made out against him.

15. Accordingly, the Criminal Petition is dismissed leaving law. the remedies available Miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed. the petitioner under ---------------------- K.C.BHANU, J DATE: 27-09-2012 Hsd [1] [2] [3] 2008 CRL.L.J. 4576 AIR 1978 SC 47 2011 (2) ALD (CRL) 948 (SC)