Quashed

Dhruba Jyoti Borah v. Umesh Prasad

Gauhati HC8 Mar 2019Crl.Pet./388/2018

Case brief

AI extract

What is this about?

High Court quashed the trial court's order taking cognizance against petitioners, including public servants, for alleged forgery in land records. The court held the cognizance order violated Section 197 CrPC as the acts were within official duty and the trial court failed to apply its judicial mind.

What did the court decide?

The order of taking cognizance and issuing process to the petitioners is quashed, set aside, and directed the trial court to decide the matter afresh.

Dhruba Jyoti Borah Vs Umesh Prasad — Criminal Trial and Appeal | Gauhati HC (2019)

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GAHC010085282018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet. 388/2018

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1:DHRUBA JYOTI BORAH

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S/O SRI BENINDRA NATH BORAH, R/O. HOUSE NO.-1, BYE LANE NO.- 3, JANAPATH, NABIN NAGAR, P.S. GEETA NAGAR, GUWAHATI-24, DIST. KAMRUP(M), ASSAM.

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VERSUS

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1:UMESH PRASAD

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S/O. SRI RAMSEWAK PRASAD @ RAMSEWAK SAH, R/O. 2 NO NICHA PATTY, G.N.B. ROAD, P.S. AND P.O. DOOMDOOMA, DIST. TINSUKIA, ASSAM. 786151

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Advocate for the Petitioner : MR S M ABDULLAH P

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Advocate for the Respondent : MR. A K GUPTA

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Linked Case : Crl.Pet. 444/2018

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1:HARBANS SINGH S/O LT. BHAG SINGH R/O 1 NO. PATIYA PATHAR RONGPURIA P.O. AND P.S. TINSUKIA DIST. TINSUKIA ASSAM PIN - 786125.

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VERSUS

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1:THE STATE OF ASSAM AND ANR. REP. BY PP ASSAM

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2:SRI UMESH PRASAD S/O LT. RAMESWAK PRASAD @ RAMESWAK SAH R/O 2 NO. NICHA PATTY G.N.B. ROAD P.O. AND P.S. DOOMDOOMA DIST. TINSUKIA ASSAM PIN - 786125. Advocate for the Petitioner : MR. K M HALOI Advocate for the Respondent : PP ASSAM Linked Case : Crl.Pet. 443/2018

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1:PRAFULLA DEKA AND 2 ORS. S/O LT. RAMA KANTA DEKA R/O LOHARI PATTY MAKUM P.O. AND P.S. MAKUM DIST. TINSUKIA ASSAM PIN - 786170.

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2: SUNIL GOGOI S/O LT. DHONESWAR GOGOI R/O BORDOLOI NAGAR TINSUKIA P.O. AND P.S. TINSUKIA DIST. TINSUKIA ASSAM PIN - 786125. 3: BIREN CHANGMAI S/O SRI CHENIRAM CHANGMAI R/O VILL- GELAPUKHURI P.O. AND P.S. TINSUKIA DIST. TINSUKIA ASSAM PIN - 786125. VERSUS 1:STATE OF ASSAM AND ANR. REP. BY THE PUBLIC PROSECUTOR ASSAM.

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2:SRI UMESH PRASAD

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S/O LT. RAMSEWAK PRASD @ RAMESWAK SAH R/O 2 NO. NICHA PATTY G.N.B. ROAD P.O. AND P.S. DOOMDOOMA DIST. TINSUKIA ASSAM PIN - 786125.

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Advocate for the Petitioner : MR. K M HALOI Advocate for the Respondent : PP ASSAM

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BEFORE

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HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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Date of hearing: 28.02.2019. Date of judgment: 08.03.2019.

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JUDGEMENT AND ORDER

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These three Criminal Petitions are taken up together for hearing and disposal being arisen out

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of the common order dated 19.03.2018, passed by learned Judicial Magistrae 1^st Class, Tinsukia, in

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C.R. Case No.125^C /2017, taking cognizance against the five petitioners, who have filed the present Criminal Petitions, for quashing the aforesaid proceeding.

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Petitioner Dhruba Jyoti Borah has filed the Crl. Petition No.388/2018, petitioners namely Prafulla Deka, Sunil Gogoi and Biren Changmai have filed the Crl. Petition No.443/2018 and all the four petitioners are public servants, whereas Harbans Singh, the petitioner in Crl. Petition No.444/2018 is a private person. At the relevant time, petitioner Dhruba Jyoti Borah was the Circle Officer and petitioners namely Prafulla Deka, Sunil Gogoi and Biren Changmai were serving as Senior

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Assistant, Lat Mandal and Process Server respectively in the office of the Circle Officer, Tinsukia Revenue Circle. While they were serving in the office of the Circle Officer, Tinsukia Revenue Circle, petitioner Harbans Singh filed an application on 29.04.2016, before the Circle Officer, Tinsukia for mutation of a plot of land measuring 4 katha 19.13 lecha, covered by Patta No.7, Dag No.2 (Part) of village Narshing under Tinsukia Mouza, on the strength of a Regd. Sale Deed No.267 of 1987. Following the order of the then Circle Officer, petitioner Prafulla Deka being the Senior Assistant, registered a Misc. Case, petitioner Sunil Gogoi being the Lat Mandal submitted his report on the basis of field survey and petitioner Biren Changmai being the Process Server served the notice issued under the signature of Circle Officer upon the concerned parties. Thereafter, the Circle Officer, Tinsukia granted mutation of the land in question in favour of the applicant Harbans Singh.

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After the aforesaid mutation, respondent Umesh Prasad has filed a complaint against all the petitioners before the learned Chief Judicial Magistrate, Tinsukia with the allegation that the petitioners in collusion among themselves have committed forgery in the land records and with mala fide intention granted mutation illegally in favour of petitioner Harbans Singh. The said complaint was registered as C.R. Case No.125^C /2017 and on the basis of the said complaint, the learned JMFC, Tinsukia vide order dated 19.03.2018, has taken cognizance of the offence under Sections 120B/466/471 of the IPC against all the petitioners and issued summons to all of them to appear before the Court and face the trial.

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The petitioners who are public servants have come forward before this Court with the present petition under Section 482 CrPC, challenging the summoning order passed by the Court, on the ground that they being public servants cannot be prosecuted without prior sanction of the State Government under Section 197 CrPC, as they have done the mutation while discharging their official duty. Similarly the contention of petitioner Harbans Singh is that he has duly applied for mutation before the Circle Officer (the above petitioners), on the basis of sale deed of his father/grand-father. He have claimed the mutation of the land by way of inheritance and the concerned office has mutated

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his name as per due procedure which revealed from the record itself and hence, he cannot be arrayed as an accused in the said case.

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All the petitioners accordingly prayed for quashing of the aforesaid order of taking cognizance and the entire proceeding.

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I have heard the submission of learned counsels for the petitioners as well as the learned counsel for the complainant/respondent.

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The learned counsel for the petitioners by referring to the documents that has been annexed with the petition has submitted that the petitioner Harbans Singh filed a petition on 29.04.2016 (Annexure-1), before the Circle Officer, Tinsukia Revenue Circle praying for mutation of the land measuring 4 katha 19.13 lecha, covered by Patta No.7, Dag No.2 (Part) of village Narshing under Tinsukia Mouza, on the strength of a Regd. Sale Deed No.267 of 1987, with a submission that the said land belong to his father which he purchased from one Santosh Ghosh in 1987, through the Regd. Sale Deed No.267 of 1987 and since then they have been possessing the land. However mutation of the same was not done. It was also mentioned that some people by giving Power of Attorney to one Sri Lahar Das, have been trying to sale the said land. So it was prayed not to approve sale permission and to allow mutation in the name of his father and then to him by way of inheritance. The aforesaid petition was registered as Miscellaneous Case No.87-A/2015—16 (Annexure-2) and the Circle Officer issued notice vide Annexure-3 & 4, to the respective persons and also directed for enquiry by the Lat Mandal and to submit report. The aforesaid notice was served by the petitioner Biren Changmai, the Process Server and the petitioner Sunil Gogoi, being the Lat Mandal, furnished the report as directed by the Circle Officer vide Annexure-5 and on the basis of report of the Lat Mandal, the Circle Officer passed the mutation order on 20.10.2016, vide Annexure-6.

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Accordingly it has been submitted by the learned counsel for the petitioners that as the entire exercise has been done by the petitioners as Public Servants as per the official procedure and due

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manner, they cannot be embraced with any conspiracy and criminal liability, without prior sanction from the Government.

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In support of their contention, the learned counsels for the petitioner has placed reliance upon the decision of the Hon’ble Apex Court in: (1) State of Orissa vs. Ganesh Chandra Jew, reported in (2004) 8 SCC 40 and (2) D.T. Virupakshappa vs. C. Subash, reported in (2015) 12 SCC 231 and have submitted that any cognizance taken by the Court without prior sanction against the public servant is bad in law and liable to set aside.

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The contention that has been raised by the learned counsel for the petitioner Harbans Singh is that the petitioner duly applied for mutation which has also been adjudicated by the authorities concerned in proper manner and has granted mutation in his favour, which was prior to the filing of the complaint by the complainant and also prior to the execution of the sale deed in favour of the complainant. That being so, no criminal culpability can be attributed to him and the same may be a civil dispute and the complainant has appropriate remedy to challenge such mutation by way of appeal etc.

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Relying on a decision of the Hon’ble Supreme Court in Pooja Ravinder Devidasani vs. State of Maharashtra and others, reported in (2014) 16 SCC 1 and Rajib Ranjan and others vs. R. Vijaykumar, reported in (2015) 1 SCC 513, it has been contended that it will be abuse of the process of law to initiate criminal proceeding where the entire matter is of civil dispute. Observation made in Rajib Ranjan (Supra), para 26 of the said judgment has been referred, wherein it has been held that the Court must ensure that a criminal prosecution is not used as an instrument of harassment for seeking private vendanta or with an ulterior motive to pressurize the accused, if such criminal complaint is filed after loosing the civil litigation. Further the observation made in Pooja Ravinder Devidasani (Supra) has been relied wherein it is held that mere verbatism reproducing words of section without a clear statement of fact supported by proper evidence, not enough to made the accused liable.

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Further it is held in para 30 of Pooja Ravinder Devidasani (Supra) that putting the criminal law into motion is not a matter of course. To settle the scores between the parties, which are more in the nature of a civil dispute, the parties cannot be permitted to put the criminal law into motion and courts cannot be a mere spectator to it.

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The learned counsel for the respondent Mr. A.K. Gupta however vehemently resisted the contention raised by the petitioners’ counsels that the learned trial Court has rightly taken the cognizance on the basis of the evidence of the complainant as well as the Circle Officer, who were examined under Section 202 CrPC and has submitted that the sanction is not always necessary while the purported act has no nexus with the official duty and done to favour illegally certain persons. It is submitted that public servant is not entitled to indulge in criminal activities while discharging such duty and in such cases, sanction under Section 197 CrPC is not required.

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In support of his contention, the learned counsel has relied upon the decisions of the Hon’ble Apex Court in State of Madhya Pradesh vs. Awadh Kishore Gupta, reported in 2003 STPL 17691 SC, Narmada Prasad Sonkar alias Ramu vs. Sardar Avtar Chabara and others reported in 2006 STPL 6351 SC, Inspector of Police vs. Battenapatla Venkata Ratnam, reported in 2015 STPL 4511 SC and Devinder Singh vs. State of Punjab, reported in (2016) 12 SCC 87. Moreover, the learned counsel for the respondent has submitted that question of sanction may arise at any stage of proceeding and the case should not be quashed only for want of sanction and the same can necessarily be raised before the trial Court.

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Due consideration has been given to the submission made by the parties and gone through the documents annexed.

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On perusal of the complaint itself, it would go to show that the said complaint was filed on 12.12.2017, referring about the agreement entered into between the complainant/respondent No.2 with (1) Smti Sukhsiri Devi @ Sukhsiri Das and (2) Sri Gopi Chand Das @ Gopi Chandra Das, as on

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30.08.2014, for purchasing a plot of land measuring 1 Katha 5.11 lecha, covered by Dag No.2, PP No.7, situated at village Narshing under Tinsukia Mouza and paid Rs.40,000/- against the same and since then he was in possession of the land. But due to failure to execute the sale deed, the complainant/respondent No.2 has filed the Title Suit No.31/2016 and the same was decreed on 11.01.2017 and as per the order in Title Execution Case No.3/2017, the sale deed was executed in the year 2017, with a direction to the Circle Officer, Tinsukia Revenue Circle to grant mutation on the basis of the sale deed. The Circle Officer, Tinsukia Revenue Circle, in turn submitted a report on 24.05.2017 and 16.08.2017 that there was no land in the name of vendors. The respondent came to know through the RTI application that the land has been mutated in the name of Harbans Singh, son of Late Bhag Singh, on the basis of sale deed executed in the year 1983 and 1987 and only thereafter the complaint was filed with the allegation that the Circle Officer Dhruba Jyoti Borah along with the concerned Senior Assistant Prafulla Deka, Lat Mandal Sunil Gogoi and Process Server Biren Changmai have committed forgery of land records with a mala fide intention to incorporate the name of Harbans Singh, by granting mutation illegally.

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The learned trial Court examined the witnesses including the Circle Officer, successor in the office and has taken cognizance of the offence under Sections 120B/466/471 of the IPC.

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Now it is to be noted that the learned Court was aware about the fact that the petitioners were official/staff of the Circle Office, were public servant at the relevant time and the other petitioner Harbans Singh is the person in whose favour the mutation has been made. That being so, it was bounden duty of the Court to appreciate the same and it should be reflected in the order also as to why the protection under Section 197 CrPC is not required prior to taking cognizance. Similarly on the verbatism of the complainant and his witnesses that the petitioner Harbans Singh illegally obtain the mutation, without any supporting documents, the learned Court has taken the cognizance.

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It is admitted by the respondent/complainant himself that the sale deed was executed in favour

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of the complainant in the year 2017 (date not mentioned in the complaint petition), whereas the petitioner Harbans Singh applied for mutation on 29.04.2016 and his petition was registered on 02.05.2016 and thereafter as has been discussed above, after serving the notice to the concerned persons and after obtaining the report of the Lat Mandal, the mutation was granted in favour of the petitioner Harbans Singh. Obviously the said exercise was made prior to registration of the sale deed in favour of the complainant in the year 2017. That being so, it is also a considerable aspect as to how the said exercise can be done by hatching a conspiracy when the complainant was not in the picture and said Harbans Singh was not a party to the sale deed that was executed in favour of complainant and to the Title Suit or even to the Title Execution case.

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Let us examine the provision pertaining to Section 197(1) and 197(2) of the CrPC, which read as under:

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“ 197.Prosecution of Judges and public servants.-

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(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

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(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

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(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

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(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government”.

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21. In State of Orissa vs. Ganesh Chandra Jew (Supra), in para-7 it has been held that:

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“7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by

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them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case ”.

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Similar view was endorsed in D.T. Virupakshappa vs. C. Subash (Supra), where the Hon’ble

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Apex Court observed that even the public servant acted in excess of his official duty but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection.

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Summoning an accused in a criminal case is not a mere formality. In Pepsi Foods Ltd. vs. Judicial Magistrate, reported in (1998) 5 SCC 749, the Hon’ble Apex held as follows:

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“…………….. summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect

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that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused”.

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Thus in view of the proposition laid down by the Hon’ble Apex Court statutory protection provided to the public servant under Section 197 CrPC has a wide amplification and public servant is entitled to get such protection when the alleged act done by the public servant is reasonably connected with discharge of his official duty. As has been held by the Apex Court in State of Orissa vs. Ganesh Chandra Jew (Supra), “official duty” implies that the act or omission must have been done by the public servant in the course of his service and that it should fall within the scope and range of his official duty.

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Now in the instance case, four petitioners who are officer/staff in the Circle Officer have discharged their duty by granting mutation which is connected within the scope and range of their official capacity and now even if it is done in excess or dereliction, then also they are supposed to get protection under Section 197 CrPC and sanction is required prior to initiation of criminal proceeding against such discharge of official duty. So far as the petitioner Harbans Singh is concerned, there is scope to examine as to whether the present matter indicates civil liability or criminal liability on his part.

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As it reflects, the learned trial Court has not applied its judicial mind as required by law to the entire facts and circumstances and the evidence on record, while taking cognizance.

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Resultantly the order of taking cognizance and issuing the process to the petitioners is hereby quashed and set aside with a direction to the learned trial Court to decide the matter afresh in accordance with law.

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These petitions disposed of with the above direction.

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JUDGE

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Comparing Assistant

Dhruba Jyoti Borah v. Umesh Prasad

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Dhruba Jyoti Borah v. Umesh Prasad

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