Punjab And Haryana High Court · 2010

Mr. Ravish Kaushik, Assistant Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) The petitioner, who at the relevant time was posted as Sub- Registrar, Kanina, has been summoned by the Court of Judicial Magistrate (1st Class), Mohindergarh vide its order dated 02.09.2002 (Annexure P-2) to stand trial for an offence under Section 465, 467 and 471 IPC in the complaint (Annexure P-1) filed by respondent No.1. The petitioner filed a revision petition against the order dated 02.09.2002 before learned Sessions Judge, but failed. Thus, the present petition under Section 482 Cr.P.C. In the present petition, petitioner has prayed that the complaint (Annexure P-1) along with the summoning order (Annexure P- 2) be quashed. Criminal Misc. No.45832-M of 2004 2 The summoning Court has summoned the petitioner after the preliminary evidence was led by the complainant. The complainant had examined five witnesses and had produced various documents in the preliminary evidence. The trial Court noticed the testimony of PW-5 Balbir Singh and other witnesses and observed as under: “4. PW-5 Balbir Singh, complainant in this case summarized the facts on oath as alleged in the complaint. He deposed on oath that Sheolal was the resident of village Jamawari, who generally come to his father in village Sihor. Sheolal appointed his father as power of attorney regarding the land lies in village Sihor. His father had also purchased some land from Sheolal in pursuance of sale deed Ex.PW5/A and Ex.PW5/B. On dated 2.7.2002 an agreement Ex.PW1/A regarding the alienation of land measuring 14 Kanals 10 Marlas was executed by the Jagrup accused No.2 in favour of the complainant etc. On dated 3.7.2002 Hawa Singh and Sube Singh the legal heir of Sheolal cancelled the power of attorney No.182 dated 14.6.1990 in pursuance of document Ex.PW3/A and Ex.PW3/B, meaning thereby after 3.7.2002 Jagram has no power to alienate the property in question. He deposed on oath that the revocation of power of attorney was communicated the Jagrup, Sub Registrar Kanina and Sub Registrar Mohindergarh in pursuance of notices Ex.PW2/B, Ex.PW2/C and Ex.PW2/D, which was also received by the concerned Registrar on 8.7.2002. PW-2 also deposed on oath that all the three notices were seen by the Sub Registrar, Kanina and marked to Registration Clerk. It also leads that the Deep Chand Sub Registrar had knowledge regarding the revocation of the power of attorney, which was executed in favour of Jagrup on 14.6.2002. PW-5 Balbir Singh also deposed on oath that on dated 19.7.2002 the original owner of the land i.e. legal heir of Sheolal executed the sale deed in favour of complainant etc. which was presented before the Deep Chand Sub Registrar, Kanina for registration who refused to register the same and told that two persons had came to him, vide which one was seller and Criminal Misc. No.45832-M of 2004 3 other was purchaser regarding alienation the land in question. He also deposed on oath that on the next day they again appeared before Deep Chand Sub Registrar Kanina and conveyed that the power of attorney in favour of Jagram had now been cancelled and notices had duly been given to the parties as well as him. He also deposed on oath that Deep Chand Sub Registrar Kanina refused to register the sale deed and asked, who will bother to see the notice served to him. Later on dated 23.7.2002 Jagram executed the sale deed in favour of Ishwar by virtue of sale deed No.673 Ex.PW2/E, land measuring 18 Kanals 14 Marlas. Sub Registrar Kanina wrongly and illegally attested the sale deed while he had a knowledge regarding revocation of the power of attorney of Jagram. They were also adamant to take the possession of the land in question, while he was in possession of the land in question in pursuance of jamabandi Ex.PW5/C. He also proved the notices etc. mentioned above. The testimony of PW-5 Balbir has duly been corroborated by the testimony of PW-3 Sube Singh and PW-4 Hawa Singh, who are the real owner or having the power of attorney on behalf of other owners. PW-2 Devender Kumar registration Clerk admitted the notices regarding the revocation of the power of attorney and also deposed on oath that the notices were brought into the notice of Deep Chand Sub Registrar, Kanina meaning thereby Deep Chand Sub Registrar Kanina acted against rules intentionally. Accused No.3, 4 and accused No.5 are the attesting witnesses who attested the sale deed despite knowing the facts of revocation of power of attorney of Jagaram, as came into the evidence. At the time of arguments, counsel for complainant filed an application for summoning the accused No.6 stating therein that there is no need to obtain the sanction for summoning the accused No.6 in view of the law settled in 1997(3) RCR Page 251. The counsel for the complainant also argued that the accused are required to be summoned to face the trial in view of the law settled in AIR 1996 S.C. page 1744. Relying upon the law relied by the counsel for the complainant and perusing the entire evidence on record, I am inclined to hold that all the Criminal Misc. No.45832-M of 2004 4 accused had committed the offence under Section 465, 467, 471 of IPC.” Counsel for the petitioner has submitted that as to what was stated in the preliminary evidence by the witnesses, never formulated a part of the complaint. It is urged that what is not pleaded in the complaint, cannot be deposed by the witnesses in the evidence. This argument is to be rejected at the outset. A complaint is not an encyclopedia. Before summoning the accused, the Magistrate has to take into consideration the preliminary evidence led by the complainant. Furthermore, PW-5 Balbir Singh, in his deposition, corroborated by the testimony of PW-3 Sube Singh and PW-4 Hawa Singh, has brought out incriminating circumstances, which justify prosecution of the petitioner. Even if the argument, for the sake of assumption, is accepted, then also the witnesses have improved their case. What is the effect of this improvement, is in the realm of appreciation of the evidence. This Court, while exercising jurisdiction under Section 482 Cr.P.C., will not determine truth and veracity of the allegations leveled by the complainant in his testimony. Furthermore, counsel for the petitioner has placed on record a Division Bench judgment of this Court rendered in ‘Hari Singh and another v. Sub Registrar, Narnaul and others’ 1998(3) Latest Judicial Reports page-377 to contend that the Sub-Registrar is bound to register a document which is presented before him. There can be no quarrel with this proposition but what is projected in the present case is that the petitioner, knowingly well that the power of attorney had been cancelled, allowed its registration. The witness has stated that the act of the petitioner was malafide and he had connived with the other co-accused. As to whether the petitioner has connived with or acted malafide, is to be Criminal Misc. No.45832-M of 2004 5 determined after the evidence is adduced by the complainant before the trial Court. It is further submitted that a sanction under Section 197 Cr.P.C. was required to prosecute the petitioner. If the act and conduct of the petitioner was malafide and amounted to fraud and forgery, it cannot be said that petitioner was acting purportedly in discharge of his official duty. Thus, no sanction was required. Hence, no interference is warranted in the present petition and the same is hereby dismissed. March 29, 2010 [KANWALJIT SINGH AHLUWALIA] JUDGE