The High Court
Case Details
In the High Court of Jharkhand at Ranchi Cr.M.P.No.1251 of 2011 Sudama Devi………………………………………..Petitioner V E R S U S State of Jharkhand through Vigilance….Opposite Party CORAM: HON’BLE MR. JUSTICE R.R.PRASAD For the Petitioner :MrAnil Kumar For the Vigilance :Mr.Nilesh Kumar 9/ 16.5.13. The defect which pertains to the certified copy of the FIR is hereby ignored. Heard learned counsel appearing for the petitioner and learned counsel appearing for the State-Vigilance. This application has been filed for quashing of the order dated 4.11.2010 passed by the learned Special Judge, Vigilance, Ranchi in Vigilance P.S. case no.52 of 2002 whereby and whereunder cognizance of the offence punishable under Sections 420, 467, 468,471, 120B, 109,201, 423, 424, 477 of the Indian Penal Code and also under Section 13(i)(d) read with Section 13(2) of the Prevention of Corruption Act has been taken against the petitioner. Before advertising to the submission advanced on behalf of the parties, case of the prosecution needs to be taken notice of. A piece of land measuring 38 acres appertaining to Khata No.87, Plot Nos. 4 and 5 situated at village Bargaon, P.S. Nankom was belonging to ex-landlord Hari Charan Sahu, who in the year 1948, out of the said land transferred 25 acres of land to Bhagwati Devi and 16 acres of land to Durga Prasad Agrawal. Subsequently, Bhagwati Devi transferred 2 acres of the land to Thakur Jagdish Narayan Singh. In the year 1960, one Devki Nandan Modi, son of Bhagwati Devi transferred 23 acres of land to Laxmi Devi, Urmila Devi and Sudama Devi. Further Durga Prasad Agrawal sold
Legal Reasoning
16 decimal of land in the year 1959 to Smt. Simalo Devi whose name and also the name of other transferees were mutated in the records of right. In the year 1975-76, the then Circle Officer suspected some foul play in the transfer of land and therefore, he initiated a case bearing no.5 to 8 of 1979-80 for suspension of rent. After initiating the case, he referred the matter to the Land Reform Deputy Collector, who initiated a case under Section 4H of the Bihar Land Reforms Act, vide case no. 1 to 4 of 1980-81. After initiation, Land Reforms Deputy Collector, vide its order dated 12.9.1990 asked for a report from the Circle Officer. Accordingly, the then Circle Officer submitted its report on 4.11.1990. After receiving the report, Land Reforms Deputy Collector, vide its order dated 27.12.1990 cancelled Jamabandi and recommended the matter for its confirmation to the Sub- divisional Officer, who in turn, forwarded the matter to the Deputy Collector on 27. 2.1991. On 26.12.1991, Additional Collector dropped the proceeding. However, 2.7.1993, Deputy Collector, Ranchi again reopened the mater and initiated proceeding under Section 4H afresh, vice case no.26R, 28 of 1993-94. Thereupon Jamabandi was cancelled on 17.11.1993 which was confirmed by the State Government on 2.1.1997. Thereupon a case was lodged on the premise that ex-landlord in contravention of the provision of law has transferred the land. On the said allegation, a case was registered as Vigilance P.S case no.52 of 2002 under Sections 420, 467, 468,471, 120B, 109,201, 423, 424, 477 of the Indian Penal Code and also under Section 13(i)(d) read with Section 13(2) of the Prevention of Corruption Act. When cognizance of the offence was taken, vide order dated 4.11.2010, the same was challenged before this Court. Mr. Anil Kumar, learned counsel appearing for the petitioner submits that as per the case of the prosecution, when the matter had been referred to the Additional Collector for cancellation of Jamabandi, the Additional Collector instead of canceling the same, dropped the proceeding vide its order dated 26.12.1991 but again it was re-opened on 2.7.1993 by the Deputy Collector and ultimately Jamabandi was cancelled in the year 1993 which was approved by the State Government on 2.1.1997. Those orders were challenged before this Court vide C.W.J.C No.3007 of 1997 (R) and the order cancelling Jamabandi was set aside. In such situation, it can never be said that the ex-landlord had transferred the land in contravention of the provision of the Act and thereby none of the offence under which cognizance has been taken gets attracted and hence, the order taking cognizance is fit to be set aside. Learned counsel further submits that no allegation whatsoever is there for commission of the offence either under Section 423 or 424 of the Indian Penal Code and that the petitioner cannot be said to have committed offence under the Prevention of Corruption Act, as the petitioner has never been alleged to have abetted the public officers to commit offence of criminal misconduct and as such, offence under Section 13(1)(d) of the Prevention of Corruption Act ever gets attracted against the petitioner and thereby the entire criminal proceeding of Vigilance P.S. case no.52 of 2002 including the order dated 4.11.2010 is fit to be quashed. As against this, Mr.Nilesh Kumar, learned counsel appearing for the Vigilance submits that it is the case of the prosecution that the land in question comprising 48.66 acres was recorded in the Revisional Survey Khatian as Gairmajrua Malik. Erstwhile landlord Hari Charan Sahu made settlement of 25 acres of land in the year 1948 in favour of Smt.Bhagwati Devi and 16 acres of land to Durga Prasad Agrawal. During enquiry by the Vigilance Bureau, it was found that ex-landlord had knowledge of the Land Acquisition Case 33/44-45. In spite of that, he settled it in the year 1948 by transferring the land to his close relatives including the petitioner and, in fact, it was benami transaction and in this manner all the accused persons in connivance with each other put the State Government to loss. Having heard learned counsel appearing for the parties, it needs not to be recorded in details the case of the prosecution. Simply it be stated that after the land was transferred to this petitioner and others, they got their names mutated against the land transferred to them and even Jamabandi was created in their names. After Jamabandi was created, it was cancelled but that order was challenged before this Court and this Court set aside the order by which Jamabandi had been cancelled and thereby the transactions cannot be said to be illegal or in contravention of the provision of the Land Reforms Act. In such situation, whatever offence has been alleged it never gets attracted. That apart, when the petitioner was settled with the land by the ex-landlord and after settlement, the petitioner got the land mutated in her name, how she can be said to have committed offence of forgery. In this regard I may refer to a decision rendered in a case of Mohammad Ibrahim and ors. Vs. State of Bihar and Anr.[2009) 8 SCC 751] wherein their Lordships after having regard to the provision contained in Section 470 of the Indian Penal Code as well as other provisions relating to forgery did observe as follows: “The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.” The Court has further observed that analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories as follows: “ The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a documents in any material part, without lawful authority, after it has been made or executed by either himself or any other person. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not be reason of; (a) unsoundness of mind; (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration. In short, a person is said to have made a ‘false statement’, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses. The sale deeds executed by the first appellant clearly and obviously do not fall under the second and third categories of “false statement”. It, therefore, remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of the complainant’s land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the fist accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorized or empowered by the owner to execute the deed on owner’s behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows it is not his property. But to fall under first category of “false statement”, it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Therefore, such document (purporting to convey some property of which he is not the owner) is not execution of a false document us defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 or Section 471 of the Code is attracted.” execution of Thus, it has been categorically held that when a document is executed by a person claiming a property though it is not his property but when he is not claiming that he is authorized by someone else or he is someone else, execution of such document cannot be said to be a false document in terms of Section 464 of the Indian Penal Code and if it is not a false document, then the question of committing an offence under Sections 467, 468 and 471 does not arise. The ratio laid down in the aforesaid case equally applies in this case as the transferees, who are claiming the properties as their own case, can never be said to have committed offence of forgery the question of committing offence of forgery by the petitioner never arises. Going further in the matter, one can hardly conceive as to how offence under Sections 423 and 424 of the Indian Penal Code is made out when there has been no case of dishonest or fraudulent execution of deed of transfer containing false statement of consideration nor it is the case of dishonest or fraudulent removal of concealment of the property. Likewise in the facts and circumstances of the case, when the land was settled to this petitioner by the ex-landlord and the petitioner got jamabandi created in her name and also got her name mutated against the land settled, she can never be said to have abetted the Government Servant to commit offence of criminal breach of trust. Therefore, offence under Section 409 of the Indian Penal Code never gets attracted. Further in the facts and circumstances, as stated above, the petitioner cannot be said to have abetted the offence under Section 13(1) (d) of the Prevention of Corruption Act in absence of any allegation that the petitioner by adopting corrupt or illegal means and by abusing his position as a public servant, obtains for herself or for other person any valuable thing or pecuniary advantage got the jamabandi created in her name. Under the circumstances, entire criminal proceeding Vigilance P.S. case no.52 of 2002 including the order dated 4.11.2010, taking cognizance, is hereby quashed, so far the petitioner is concerned.
Decision
In the result, this application is allowed. (R.R.Prasad, J.) ND/