Allowed

Rashid Baksh v. Rajendra Gupta and Ors.

Chhattisgarh HC2 Mar 2022CRMP/466/2010

Case brief

AI extract

What is this about?

High Court allowed a criminal revision against an order quashing a prosecution for forgery and cheating against a Tehsildar. The court held that fabricating records or serving notices to dead persons is not an official duty and quashed the lower court's reliance on Section 197 Cr.P.C.

What did the court decide?

Order dated 07.02.2009 allowing revision held illegal; order dated 16.01.2009 registering offence restored.

Rashid Baksh Vs Rajendra Gupta and Ors. — Civil Procedure and Limitation | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRMP No. 466 of 2010

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Rashid Baksh, aged about 38 years, S/o Late Khuda Baksh R/o Shailendra Apartment, Om Nagar, Jarhabhata, Police Station - Civil Lines, Tahsil and District Bilaspur (CG)

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---- Petitioner

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Versus

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Rajendra Gupta, aged about 44 years, Ex-Tahsildar Bilaspur, Currently posted at Korba, Police Station – Korba, Tahsil and District Korba (CG)

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Smt. Kalpavalli Arnold, aged about 50 years, W/o. Shri Atul Kumar Arnold, R/o Village Mangala, Police Station – Civil Lines, Tahsil and District Bilaspur (CG).

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The State of Chhattisgarh, through District Magistrate, Bilaspur.

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---- Respondents

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For Petitioner :	Shri G.R. Miri, Sr. Adv. Along with Shri Ashok Mishra, Advocate
For Respondent No.1 :	Shri A.K. Prasad, Advocate
For Respondent No.2 :	Shri Ravindra Sharma, Advocate
For Respondent No.3/State :	Shri Ghanshyam Patel, GA

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HON'BLE SHRI JUSTICE GOUTAM BHADURI

ORDER

02/03/2022

Heard.

Challenge in this petition is to the order dated 07.02.2009 against the order passed at the behest of respondent No.1, who was working as Tehsildar, Bilaspur.

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The brief facts of this case are that Khuda Baksh, who is the father of the petitioner, purchased a land along with Smt. Kalpavalli, respondent No.2. The land is bearing Khasra No.1383, admeasuring 1.00 acres, situated at Mangala, Patwari Circle No.21, R.I. Circle Bilaspur, District Bilaspur, which falls under Ward No.1, Vikas Nagar, Bilaspur. The date of purchase was on 20.02.1998 from one Samaliya vide Annexure P-1. Khuda Baksh died on 16.07.1998 after 5 months of the purchase. The death certificate is Annexure P-2. After his death initially an application was filed by respondent No.2 Smt. Kalpavalli Arnold on 17.04.2004 for mutation of her name under Section 109 & 110 of the C.G. Land Revenue Code, 1959 (for short the Code, 1959) before the Tehsildar. The Tehsildar issued notice and on 08.10.2004 passed an order of mutation of name of Kalpavalli Arnold and Khuda Baksh S/o Ilahi Baksh. Subsequently, after mutation an application was filed for partition of the land. In the said application, notices were issued and eventually after alleged service of the notice, order of partition was passed by Tehsildar on 23.01.2004. The petitioner contends that he being son of Khuda Baksh when came to know about the fact of such partition, an appeal was filed before the Sub Divisional Officer to annul the same.

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The Sub Divisional Officer after hearing the parties by an order dated 23.06.2008 (Annexure P-5) set aside such order of partition. Subsequently, the petitioner made a report to the police vide (Annexure P-6) on 12.07.2007 however no action was taken by police and eventually arraying the co-owner Smt. Kalpavalli Arnold and the then Tehsildar Rajendra Gupta a complaint was filed under Section 200 of the Cr.P.C. before JMFC to register an offence under

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Section 420, 466, 467, 468, 469, 471, 474 read with Section 34 of the IPC. The statements of the complainant and the witnesses were recorded and the learned Judicial Magistrate by its order dated 16.01.2009 ordered for registration of an offence against the respondent under Sectoins 420, 466, 467, 468, 469, 471, 474 of the IPC. The private respondents filed two criminal revisions separately which were bearing Nos. 52/2009 and 59/2009 both the criminal revisions were decided simultaneously by order dated 07.02.2009 holding that the respondent No.1 Rajendra Gupta who was working as Tahsildar has done the job while discharging his duty in his official capacity as such the sanction under Section 197 Cr.P.C. was mandatory and allowed the revision. Being aggrieved by such order this instant petition.

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Learned counsel for the petitioner went through the documents and would submit that the Tehsildar was hand in gloves with the co-owner as the notices for mutation initially were issued in name of the dead person Khuda Baksh as he was already dead on 16.07.1998. However, after service the mutation proceedings were carried out by showing that service has been effected on the interested party i.e. the father of the petitioner, who was already dead. He would further submit that subsequent to that a partition proceeding was drawn and within a short span, fastracking the entire case an imposter was presented as Khuda Baksh and after recording his statement the partition was effected. He would further submit that this partition was set aside by the SDO and simultaneously report was made to the police. He would further submit that when the police did not take any action a complaint was filed and the Judicial Magistrate after evaluating the evidence registered the offences. He would

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further submit that when it was challenged in the revision, the revisional Court fell into error to hold that the Tehsildar was discharging his official duty. He would further submit that kind of job discharged by the Tehsildar would not come within the ambit of official act, therefore, separate sanction would not be necessary as required under Section 197 of Cr.P.C.

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Per contra, learned counsel for respondent No.1 would submit that the Tehsildar was discharging his official duty and it was not within his knowledge or control to identify the people. He would further submit that when the application for mutation and partition was filed by respondent No.2 it was accepted and the job was discharged in the official capacity, therefore, the protection under Section 197 Cr.P.C. would be applicable. In absence of any sanction no prosecution would lie. He placed his reliance in the cases of Indra Devi Versus State of Rajasthan and another {(2021) 8 SCC 768} and Abdul Wahab Ansari Versus State of Bihar and ors. {2000 CriLJ4631}. He would further submit that the judicial order which is passed by the Tehsildar has been set aside by the competent Court, therefore, the alleged offence is completely wiped out. He would further submit that the parties have filed the civil suit and compromise has been effected, therefore, no offence is made out inasmuch as on date. He would further submit that the entire discharge of the job was done by the Tehsildar in his official capacity as such minimum sanction would be required.

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Learned counsel for respondent No.2 would submit that in the order-sheet of the Court below presence of respondent No.2 is also wrongly marked but she was not present in person. He would further submit that in the subsequent event respondent No.2 had filed a civil suit for declaration and injunction against

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Rashid Baksh for which a compromise has been effected and certain part of the land has been handed over to the petitioner and the suit is decided on the basis of the compromise, therefore, no further deliberation is required.

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I have heard learned counsel for the parties and perused the documents and the reply filed with this petition. There is no dispute that the joint purchase of the property was made by late Khuda Baksh and Smt. Kalpavalli Arnold. After purchase of the land on 20.02.1998 one of the purchasers namely Khuda Baksh died on 16.07.1998. Of late in the year 2004 an application was filed for mutation of the name by Kalpavalli Arnold vide Annexure P-3, which would show that on 17.09.2004 the said application was filed wherein notices were issued and the case was fixed for 04.10.2004. On 04.10.2004 appearance of Kalpavalli Arnold was recorded and on behalf of the father of the petitioner an affidavit was filed. The order-sheet further records that after service of the notice, no objection was recorded. Consequently, the statement of Kalpavalli Arnold was recorded and the case was fixed for orders on 08.10.2004. On 08.10.2004 the name of Kalpavalli Arnold was recorded. Perusal of the certified copy of the order-sheet would show that name of Khuda Baksh by hand writing was added in between the typed order. Till this time right & interest of the petitioner was not put into question.

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Subsequently, an application for partition was filed vide Annexure P-4. Perusal of the application would show that Khuda Baksh was made non-applicant and Kalpavalli Arnold was made the applicant. The application also contained a partition deed Ikrarnama i.e. an agreement along with affidavit. The notice issued to the general public and the agreement styled Ikrarnama purport that

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the property was partitioned. The order-sheet of the said partition proceeding shows that the application was filed on 05.10.2004 and records that the application for partition of land bearing Khasra No.1383 has been filed which is in joint holding. It was further directed that under Section 178 of the Code, 1959, the case be registered;public notice be published; notice be issued to the non-applicant; and the case was fixed for 20.10.2004. The order-sheet of 20.10.2004 records that the Kalpavalli Arnold appeared herself and the presence of Khuda Baksh was also recorded. It further records that the statements of both the applicant and the non-applicant were recorded and in respect of the public notice it also records that it is received back without any objection from the general public at large. Eventually on 23.10.2004 order of partition of the joint holding was passed with an observation that statement of non-applicant i.e. Khuda Baksh was recorded and he has no objection. These proceedings were done by the respondent No.1 in the capacity of the Tehsildar.

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Dealing with like nature of case the Supreme Court in the case of Punjab State Warehousing Corp. Versus Bhushan Chander & Anr. {Criminal Appeal

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No.159 of 2016 @ S.L.P. (Criminal) No.3906 of 2012} at para 19, 20, 21 & 22

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has held as under:-

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In Shambhoo Nath Misra v. State of U.P. {(1997) 5 SCC 326}, a private complaint was filed by the appellant therein against the second respondent for the offences punishable under Sections 409, 420, 465, 468, 477-A and 109 IPC. The learned Magistrate had dismissed the complaint holding that sanction under Section 197 CrPC was not obtained. The High Court accepted the view of the learned Magistrate. Be it stated, the learned Judge had relied upon the judgment of Hori Ram Singh (supra), B. Saha (supra) and Gill’s case. The Court observed that the requirement of the sanction by competent authority or appropriate Government is an assurance and

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protection to the honest officer who does his official duty to further public interest. However, performance of official duty under colour of public authority cannot be camouflaged to commit crime. The Court further stated that to proceed further in the trial or the enquiry, as the case may be, it has to apply its mind and record a finding that the crime and the official duty are not integrally connected.

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20. Thereafter, the Court held:-

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“It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained”.

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Being of this view, the Court allowed the appeal and set aside the order of the Magistrate and directed restoration of the complaint.

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21.In State of Kerala v. V. Padmanabhan Nair {(1999) 5 SCC 690} it has been held that when no sanction under Section 197 is necessary for taking cognizance in respect of the offences under Section 406 and Section 409 read with Section 120-B IPC. Similar principle has been laid down in State of H.P. v. M.P. Gupta {(2004) 2 SCC 349} .In Parkash Singh Badal and another v. State of Punjab and others {(2007) 1 SCC 1} it has been ruled that the offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence. Similar principle has been reiterated in Choudhury Parveen Sultana v. State of West Bengal and another {(2009) 3 SCC 398} wherein the Court referred to the authority in Bhagwan Prasad Srivastava v. N.P. Mishra {(1970) 2 SCC 56} and ruled thus:-

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“12. It was also observed in Bhagwan Prasad Srivastava (supra) that Section 197 has been designed to facilitate effective and unhampered performance of

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their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution was a condition precedent to the taking of cognizance of the cases against them by the courts. It was finally observed that the question whether a particular act is done by a public servant in the discharge of his official duties is substantially one of the facts to be determined in the circumstances of each case.”

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A survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the acts omission or commission is totally alien to the discharge of the official duty, question of invoking Section 197 CrPC does not arise .....

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10.The primary issue is that the act done by the respondent Tehsildar whether can be enveloped within the official act in discharge of the official duties. In order to prima facie establish whether the act committed by the respondent is directly connected with his duty, the test to be applied is that there must be reasonable connection between the act of omission for which the respondent was charged and the discharge of his official duty. Having applied the said test in the facts of this case, the notice was alleged to be served to Khuda Baksh. However, he was dead on that date. If some impostor was created whether the notice was served or not, the copy of the notice issued to the parties is one of the crucial document to proceed for a Court to hold that the service was effected. If the notice was not all served but the order sheet records that the notice was served then prima facie it should have been established by filing copy of the notice. The respondent Tahsildar should have placed the document to show that the Tahsildar was made to believe that Khuda Baksh was alive and/or the notice was served to Khuda Baksh. In absence of such copy of the notice, the

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inference of the official act lands into debate. The ground of fast-tracking the case of partition before the Tahsildar prima facie also does not inspire much confidence. Everything started with the service of notice to a dead person. The order-sheet purports that the notice of proceeding for partition was served to Khuda Baksh though he was dead. Had the proof of service of notice to any person have been placed in this case then the prima facie opinion could have been formed that Tahsildar acted in his official capacity to discharge the job and he under bona fide believed that notice was served to any person. Obviously it is not expected for Court to know whether a person to whom a notice is issued is alive or not. Therefore, proof of service of notice by reproducing the copy of such summons even to an impostor is the nucleus of the dispute.

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As has been relied by the respondent in the case of Indra Devi Versus State

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of Rajasthan and another {(2021) 8 SCC 768} the Supreme Court has emphasized that Section 197 Cr.P.C. seeks to protect an officer from unnecessary harrassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and thus prohibits the court from taking cognizance of such offence except whith the previous sanction of the competent authority. The Supreme Court has drawn a line of difference with the indulgence of the officers in cheating, fabrication or records or misappropriation cannot be said to be in discharge of their official duty. It held sanction under Section 197 Cr.P.C. is necessary if the offence alleged against the public servant is committed by him while acting or purporting to act in the discharge of his official duty, therefore, the Court has to draw a yard stick to form a prima facie view whether the act of omission for which the accused

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was charged has a reasonable connection with the discharge of his duties.

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Now reverting back to the present case the facts would show that in order to establish that the notices were served to any person, may be an impostor the copy of the notice to establish the fact that respondent No.1 was under bonafide believe and acted on such service report was most essential part. If filing of copy of such notice was within the control of the Tehsildar but with the reply too the said documents were not filed, which would have otherwise thrown light to the bona fide of the respondent, prima facie creates a doubt, if a document could have been placed easily before the Court when is withheld by any person adverse inference can be drawn for not producing the same. The Supreme Court further in the case of Devinder Singh and others Vs. State of Punjab Through CBI {(2016) 12 SCC 87} has laid down the nexus test under Section 197 Cr.P.C. and before discharge it is to be tested and the primary pith and substance was to test whether the act done was in official duty or not?

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13.The bona fide of the respondent No. 1 could be tested qua the official duty if it was proved before the Court it formed a prima facie opinion that the further coowner of the land placed impostor in place of Khuda Baksh and got the partition done. Under the circumstances, in view of the aforesaid discussion, I am of the opinion that the order passed by the learned Court below is required to be and is hereby set aside. Accordingly, the order dated 16.01.2009 is restored. In the result the petition stands allowed.

Sd/-

Goutam Bhaduri Judge

Ashu

HEAD NOTE

Before discharge under Section 197 Cr.P.C. the primary pith and substance test is whether act done was in official duty or not?

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Rashid Baksh v. Rajendra Gupta and Ors.

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Rashid Baksh v. Rajendra Gupta and Ors.

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