@JUDGMENTTAG-ORDER
Jaiswal, J.@mdashMiscellaneous Criminal Case No. 1816/06 has been filed by Ramesh Chandra Patel u/s 482 of CrPC for quashment of FIR No. 28/99 dated 28.3.1988, charge-sheet and other proceedings pending in the Court of Additional District Judge, Special Judge, Dhar in Criminal Case No. 1/2007. Miscellaneous Criminal Case No. 3385/07 has been filed by Ashok Jain for quashment of criminal proceedings of Special Criminal Case No. 1/ 07, pending before the Special Judge, Dhar.
2. Criminal Revision No. 425/09 has been filed by Ashok Bhonde u/s 397 of CrPC for quashment of charge-sheet filed on 11.2.2009 in Special Criminal Case No. 1/07 and the order dated 11.2.2009, by which the trial Court has framed the charges against him on the allegation that between 19th November 1993 and 1997 he was posted as Reader of Sub-Divisional Officer, Dhar and Sardarpur Tehsil and during that period he could not place the order of the Collector dated 30.6.1995 on record passed in the Case Nos. 161/1988-89, 166/1988-89 and 143/1988-89.
3. Criminal Revision No. 568/09 has been filed by Onkareshwar Tiwari, against the order dated 11.2.2009 passed by Special Judge (P.C. Act) in Special Case No. 1/07 by which the applications submitted by the petitioner were rejected and trial Court framed the charges against the petitioner Onkareshwar Tiwari on the allegations that between 12.12.1995 and 23.6.1996 he was posted as Collector District Dhar and during that period a colony licence was issued to Ashok Jain, Attorney Holder of land owners and while issuing colony licence the earlier order of the predecessor Collector dated 30.6.1996 was not kept in mind.
4. All these petitions are arise out of FIR Nos. 28/99 and 5/99 for the offence punishable under sections 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 and section 109 and 120B of IPC. At the relevant point of time Ramesh Patel was Sub-Divisional Officer, Dhar and Ashok Jain was contractor in whose favour licence was granted by the Collector. Ashok Bhonde at the relevant point of time was Reader of Sub-Divisional Officer, Dhar and Sardarpur and Onkareshwar Tiwari was the then Collector of District Dhar, a common question involved in all these four petitions and, therefore, they were heard together and are being disposed of by this common order.
5. The respondent No. 1 lodged a FIR in the year 1999 vide Crime No. 28/99 under sections 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 and u/s 109 and 120B of IPC against four Government employees and one Ashok Jain of Trimurti Builder viz.
(1) O.R. Tiwari, the then Collector, Dhar
(2) Ramesh Patel, the then SDO, Sardarpur District Dhar
(3) Shri Vikram Singh Tomar, the then Reader to Collector, District Dhar
(4) Shri Ashok Bhonde, the then Reader of SDM Sardarpur
(5) Ashok Jain of Trimurti Builder, Dhar.
6. The material facts of the case are that the land bearing Survey Nos. 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 53, 54 and 56 located at village Magajpura in Tehsil and District Dhar stood recorded in the name of Hamirchand, son of Nihalchand Choudhary. In the revenue record of 1947-48, the name of one Jasoda, widow of Rama was recorded in Column No. 5 as sub-tenant in respect of all the aforesaid survey numbers.
7. Thakur Nihalchand Chaudhary the then Jagirdar had obtained a decree of possession in respect of land in question against Bhagirath in Civil Suit No. 75/1951 and started execution proceedings. Bhagirath as the judgment debtor raised an objection that by operation of law he has become Pukka Bhumiswami and cannot be ejected from the land in question. The Court of Civil Judge Class I, Dhar passed an order on 25.7.1962 in Civil Suit No. 75/1951 upholding the objection on the ground that he became Pakka Tenant and, therefore, he cannot be ejected from the land. The Civil Judge Class I relying the decision of High Court in the case of Narsingh Kalu v. Rao Nihalkaran [1962 MPLJ SN No. 89], passed the above order. The Civil Appeal No. 26-B/62 filed by Kunwar Hamirchand Chaudhary s/o Nihalchand was dismissed by the District Judge Dhar on 27.10.1964, as a consequence of which the decree passed by the civil Court stood affirmed. M.P. Ceiling on Agricultural Holdings Act, 1960 (in shrt ''the Ceiling Act'') came into force on 15.11.1961. The Naib Tehsildar, Dhar in Revenue Case No. 15/A-6/62-63 (Bhagirath s/o Rama and others v. Thakur Hamirchand and Nihalchand), passed an order of mutation under sections 190, 109 and 110 of M.P. Land Revenue Code in favour of Bhagirath, son of Rama over the land in question while deleting the name of Hamirchand on the basis of the order passed by the civil Court on 25.7.1961. The aforesaid order of Naib Tahsildar had given affect to order of civil Court by making revenue entries in favour of Bhagirath s/o Ram in the Khatoni for 1962-63 with effect from 18.7.1963.
8. Proceedings under the Ceiling on Agricultural Holdings Act were commenced against Nihalchand, son of Pratapchand Chaudhary which were registered as Ceiling Case No. 12/63-64/A-90/B-3 (subsequently renumbered as 2/75-76/A-90/B-3 and 21/75-76/A-90/B-3). Thakur Nihalchand submitted his return in the ceiling case in Format ''K'' u/s 9 of the Act. The Format ''K'' relates to the land held by Thakur Nihalchand on 15.11.1963. The land admeasuring 1789.94 acres of 47 villages belonging to Thakur Nihalchand Chaudhary was affected by the Ceiling Act. He submitted his return on 14.12.1964 in Format ''K'' (page No. 1423 of petition). As per return filed by Nihalchand in Format ''K'' it is alleged in the petition that the land in question was not shown in that Format. On 2.9.1974 Patwari submitted the information in Format ''5'' regarding the lands held by Thakur Nihalchand and his wife in village Magajpura. It is alleged that the land in question does not find place in this format also. In Format ''5'' the land held by Thakur Nihalchand and his wife on the appointed dates namely 15.11.1961, 15.11.1963, 1.1.1971, 7.3.1974 has been shown. On 28.5.1976 draft statement was published (Order-sheet is at page No. 1235). In that statement the details of land of Magajpura in the name of Indubai (wife of Nihalchand) were published. It is alleged that the land in question does not find place in that statement. Thereafter, on 15.6.1976 one unsigned objection was filed (copy of objection is at page No. 248-249) by Suresh, Prahlad, Ramesh, Jagdish and Shankar, sons of Bhagirath stating therein that if the land in question was included in the ceiling case then the same be released from the ceiling proceedings.
9. The competent authority vide order dated 30.6.1976 allowed the objection submitted by the sons of Bhagirath Prasad thereby ordering the release of land in question from ceiling. Thereafter, on 8.2.1989 final statement was published u/s 11 of the Ceiling Act. The land in question was not entered in any column of the final statement.
10. Smt. Abha, widow of Hamirchand and another challenged the order of competent authority by filing an appeal before the Collector District Dhar vide Case No. 160/88-89/Ceiling/Appeal. The Collector held that the SDO (competent authority) had the jurisdiction to decide the ceiling case and dismissed the appeal on 26.12.1989.
11. The persons whose land were declared surplus in the ceiling case have challenged the order of the competent authority by filing three appeals before the Collector, District Dhar vide Appeals No. 161 /1988-89/Appeal (Amarsingh and another of Village Takravada v. State of M.P.), 166/1988-89/Appeal (Dayaram of Manasa v. State of M.P.) and 143/1988-89/Appeal (Gauribai of village Tarod v. State of M.P.). All the three appeals were decided on 30.6.1995 by the Collector holding that the SDO had no jurisdiction to decide the ceiling case as the lands in the ceiling case were situated in two Tahsils i.e. Dhar and Sardarpur and on this finding the Collector set aside the order dated 30.6.1976 and 8.2.1989 and remanded the matter to the SDO Dhar with a direction to issue notice to the holders and objectors and after hearing to transmit the case to the Collector for passing final orders.
12. The aforesaid order passed by the Collector was received at the Office of SDO, Dhar by Shri Ashok Bhonde, the then Reader to SDO. At that relevant point of time, Shri Virendra Singh Rawat was the SDO, Dhar-Sardarpur. Ramesh Chandra Patel, petitioner in Miscellaneous Criminal Case No. 1816/07 was posted as SDO, Dhar-Sardarpur on 17.7.1995. On 19.7.1995 he joined as SDO, Dhar-Sardarpur. It is alleged that the aforesaid order dated 30.6.1995 passed by the Collector was never produced before the petitioner by the Reader, as admitted by the Reader in his statement dated 28.9.2004 given before the SDO.
13. On 12.12.1995 three applications for diversion were filed by Jagdish, Ramesh and Prahlad, sons of Bhagirath through their Power of Attorney holder Ashok, son of Babulal Jain before the SDO (Ramesh Chandra Patel) u/s 172 of the M.P. Land Revenue Code, 1959, in respect of the lands in question. These applications were registered as Revenue Case Nos. 10/95-96/A-2 (Jagdish v. State of M.P.), 11/95-96/A-2 (Ramesh v. State of M.P.) and 12/95-96/A-2 (Prahlad v. State of M.P.). On 30.12.1995 the Collector, Dhar issued a letter to SDO, Dhar-Sardarpur to hold an inquiry and to report for grant of colony licence in respect of the land in question. On 23.1.1996 SDO sent a report to the Collector in the matter of grant of colony licence in respect of the land in question mentioning that the land in question was not affected by ceiling. On 1.3.1996, the aforesaid three diversions cases were decided by SDO and the lands for diversion in question were permitted to be diverted for residential use. Paragraphs 2, 3 and 4 of order dated 1.3.1996 reads as under:
14. The then SDO, contrary to the order passed by the Collector, on 30.6.1995 passed the order of diversion. On 6.3.1996 SDO sent another report to the Collector in the matter of grant of colony licence in respect of the land in question on account of certain queries having been raised by the Collector. Para 6 of the report dated 6.3.1996 is relevant, which reads as under:
15. Sons of Bhagirath challenged the order dated 30.6.1995 passed by the Collector in three appeals by filing a revision before the Additional Commissioner, Indore Division, Indore vide case No. 697/95-96 Revision. The Additional Commissioner vide order dated 21.6.1996 allowed the revision and set aside the order dated 30.6.1995. The order of the Additional Commissioner dated 21.6.1996 was challenged by filing a revision before the Board of Revenue, M.P. Gwalior. The Board of Revenue on 3.5.1997 decided the Revision Case Nos. 30-1/1996 (Amarsingh and another v. State of M.P. and others) and 32-1/1996 (Gauribai v. State of M.P. and others), whereby the order dated 30.6.1976 passed by SDO, order dated 30.6.1995, passed by the Collector and the order dated 21.6.1995 passed by the Additional Commissioner in the ceiling case were set aside and the matter was remanded back to the Collector, Dhar, to re-decide the ceiling case having regard to the position as on the appointed date i.e. 7.3.1974.
16. It has been alleged in the FIR that the land of 10.879 hectare of village Magajpura, Tehsil Dhar were recorded in the name of Jagirdar Shri Nihalchand Chaudhary in 1957-58 and thereafter the land was mutated in the name of Hamirchand Chaudhary. Due to passing of the order dated 30.6.1995 by the Collector the disputed lands were affected by the Ceiling Act. It was further alleged that despite having knowledge of the aforesaid order Ramesh Chandra Patel, SDO, Dhar-Sardarpur in his enquiry report dated 23.1.1996 stated that the land in question was not affected by Ceiling Act and passed diversion orders. It was further alleged that on 6.3.1996 Ramesh Chandra Patel, SDO, Dhar-Sardarpur referred his report that there was no inconvenience or public nuisance in the development of a colony on the land in question.
17. It has been alleged that in his order dated 1.3.1996 he has wrongly stated that the land in question is not affected by the Ceiling Act and there was no ceiling case pending in the Court. It was further alleged that the colonizer Ashok Jain sold plots to general public and earned profits. Thus, these officers illegally benefited the colonizer and caused loss to the Government exchequer and misused their office and committed offence under sections 13(1)(d) and 13(2) of Prevention of Corruption Act and section 120B of IPC.
18. It is submitted by learned senior counsel for the petitioners that the land in question was not under ceiling on 1.3.1996 and 25.3.1996. The Appeal Nos. 161, 166 and 143/88-89 pertained to three parties whose lands were situated in Tehsil Badnawar and that their lands were different from the land in question. It has also been stated that the order dated 30.6.1995, passed by Collector, Dhar Shri K.P. Singh was not applicable in respect of the land in question and until a land is declared to be surplus under the provisions of the Ceiling Act, the same cannot be said to be affected by ceiling. The land in question was never declared surplus. The diversion orders dated 1.3.1996 and 25.3.1996 were issued under the prevalent rules.
19. He further stated that now the order dated 30.6.1995 was set aside by the Additional Commissioner and all the orders of SDO, Collector and the Additional Commissioner in the ceiling case were set aside by the Board of Revenue and the matter was remanded to the Collector for re-deciding the case. He also drew my attention to letter No. 6884/BHOO. A Ceiling/2001 dated 10.10.2001, the report of Revenue Inspector in which it is stated that the lands in question were never declared surplus and its possession was not taken over in favour of the State Government.
20. It is also submitted that after the remand from the Board of Revenue a new ceiling case has been registered vide Case No. 1/96-97/A-90/B-6. In that case the land of village Magajpura was not included and, hence, no notices have been issued to Jagdish, Ramesh, Prahlad, sons of Bhagirath and their Attorney Ashok Jain, Hamirchand and Nihalchand.
21. Learned counsel for the petitioners submitted that the accusation against the petitioners, in substance, is that in passing the order on 1.3.1996 and allowing the diversion application u/s 172 of M.P. Land Revenue Code and in submitting a report to the Collector on 23.1.1996 and 6.3.1996 stating therein that the land involved therein was not involved in any ceiling case, he acted in conspiracy with the other accused persons and with a corrupt motive caused loss to the public exchequer by puting the land in question out of the net of the Ceiling Act.
22. He further submitted that the aforesaid accusation is absolutely groundless inasmuch as the land in question could not possibly be included as the land of the holder Nihalchand Chaudhary, who submitted his return on 14.12.1964 under the provisions of Ceiling on Agricultural Holdings Act.
23. It is submitted that as per order of the civil Court adjudicated on 25.7.1962 that Bhagirath became Bhumiswami in respect of the land in question with effect from 2.10.1959, the land in question could not possibly be included by the holder as his land either on 15.11.1963, which was the appointed date originally fixed under the Ceiling Act or on 7.3.1974, which is the appointed day according to the amended provision. The land in question has, in fact, rightly not been included by the holder Thakur Nihalchand in his return submitted u/s 9 of the Ceiling Act and has not been included either in the draft statement issued u/s 11(3) and was consequently not included in the final statement u/s 11 (6) of the Ceiling Act, which are on record. No proceeding by way of suo moto revision or otherwise has even been started or could possibly be started by any authority under the Ceiling Act for treating land in question as land belonging to holder Thakur Hamirchand.
24. The petitioner, therefore, acting as SDO (Dhar-Sardarpur) has committed no error whatsoever in treating the land in question to be the land belonging to Bhagirath or his legal representatives and not be that of Thakur Hamirchand or having been involved in the ceiling case pending against Thakur Hamirchand. No other order was possible in the course of diversion proceedings. The substratum of the accusation against the petitioner having been groundless, the prosecution started against him deserves to be quashed as there is not an iota of evidence to indicate any corruption or conspiracy apart from the diversion order dated 1.3.1996 and the report submitted by him to the Collector on 23.1.1996 and 6.3.1996.
25. Their contention was that the diversion order passed by the petitioner on 1.3.1996 has, in fact, benefited the revenue inasmuch as the annual land revenue payable in respect of the land in question has augmented from Rs. 68.64 to Rs. 64,405/- pursuant thereto and a premium of Rs. 13,440/- is also being realized by the State. In addition, the State Government has also realized stamp duty amounting to Rs. 53,25,986/-and registration charges to the tune of Rs. 4,83,972/- from the sale of plots, carved out in the land in question after its diversion.
26. On the other hand, Shri L.N. Soni, learned senior advocate of Lokayukt has submitted that there is specific allegation against the then Collector, the then SDO, Vikram Singh Tomar, Ashok Bhonde, Reader of SDO and colonizer Ashok Jain that they in spite of order of Collector dated 30.6.1995 prepared a report dated 23.1.1996 and submitted the same to the Collector. The Collector also without verifying the facts that the orders were set aside and the ceiling proceedings are pending passed the order on 1.3.1996, which is contrary to the provisions of the Ceiling Act. He also submitted that all the accused persons acted in conspiracy with the other accused persons and with a corrupt motive caused loss to the public exchequer by putting the land in question out of the net of the Ceiling Act. At this stage it cannot be said that there is no sufficient ground for framing of charges. He further submitted that the material on record smack out a prima facie conspiracy case against the petitioners and no case for quashment of charge-sheet and proceedings of Criminal Case No. 1/07 as prayed by the petitioners is made out and prayed for dismissal of above mentioned four cases.
27. We have heard the learned counsel for the parties at length and perused the records of the case.
28. By order dated 30.6.1995 the Collector, Dhar decided the appeals and set aside the order of the SDO by holding that he had no jurisdiction to decide the ceiling case as the lands in the ceiling case were situated in two Tehsils (i.e., Tehsil Dhar and Tehsil Badnawar) and as per section 2(e)(i) of the Ceiling Act, the Collector was the competent authority. With this finding the Collector set aside the orders dated 30.6.1976 and 8.2.1989 and remanded the case to the SDO, Dhar with a direction to issue notice to the holders and objectors and after hearing them to transmit the case to the Collector for passing final orders. The then SDO Ramesh Chandra Patel and his Reader Ashok Bhonde did not bring this fact in the report dated 23.1.1996. The SDO suppressed the said order of the Collector dated 30.6.1995 and sent its report in the matter for grant of colony licence by stating that the land in question is not affected by ceiling. Shri O.R. Tiwari, the then Collector without going through the record of his predecessor by which three applications were decided on 30.6.1995 and without verifying the report of the SDO from his end passed the order of diversion in all the three applications by order dated 1.3.1996 and permitted the land which was at that time involved in ceiling case to be diverted for residential use. The order of Additional Commissioner was passed on 21.6.1996 and before the said order the diversion applications were allowed by the then Collector and land was permitted to be diverted for residential use. The question that the Board of Revenue by order dated 3.5.1997 affirmed the order of the Additional Commissioner dated 21.6.1996 and, therefore, there is no illegality in the diversion order of the Collector cannot be accepted in these criminal proceedings, because at the relevant point of time when the SDO sent a report to the Collector and the Collector passed the diversion orders the order dated 30.6.1995 was very much in force. From the record it appears that the sub-tenants themselves filed objection in ceiling proceedings on 15.7.1996 and, therefore, at this stage, in these proceedings it cannot be decided whether the land in question was included in the ceiling case or not? Nor the question that after order dated 5.3.1997 no ceiling proceedings were initiated nor any notice has been issued by the competent authority under the Ceiling Act against the sub-tenant, who by operation of law have been declared Bhumiswami of the land. The question that the land in question has not been included by the holder Thakur Nihalchand in the report submitted u/s 9 of the Ceiling Act and has not been included either in the draft statement issued u/s 11(3) and was consequently not included in the final statement u/s 11(6) of the Ceiling Act, cannot be considered at this stage. Nor on these grounds it can be said that the impugned proceedings cannot be initiated against them.
29. It is fairly settled now that while exercising inherent jurisdiction u/s 482 CrPC or revisional jurisdiction u/s 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents which are beyond suspicion or doubt placed by the accused, the accusations against him cannot stand, it will be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial Court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.
30. Circumstances under which the inherent jurisdiction may be exercised, reiterated (i) to give effect to an order under the Code (ii) to prevent an abuse of the process of Code; and (iii) to otherwise secure the ends of justice. It is well settled that the power vested in the High Court u/s 482 CrPC can only be invoked for quashing on going investigation, complaint or other proceedings only in cases where either there is a legal power to the continuance of the proceedings such as the absence of sanction wherever required or where averments made in the complaint or FIR even if accepted on their face value do not constitute an offence or where there is no legal evidence to support the charge made against the accused. In the case at hand, the question whether the land in question is excluded from the ceiling proceedings or comes within the purview of M.P. Ceiling on Agricultural Holdings Act, 1960 or whether the Collector, Dhar, SDO and their Reader were having knowledge about the order dated 30.6.1995, passed by the Collector is a disputed question of fact which cannot be decided on the basis of the record of criminal case. The apex Court in the case of State of Andhra Pradesh v. Gourishetty Mahesh and others [(2010)11 SCC 226], has held that while exercising jurisdiction u/s 482 CrPC the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Court. It is further observed that section 482 CrPC is not an instrument handed over to an accused to short circuit a prosecution and bring about its closure without full fledged enquiry. On perusal of the material on record, we are of the view that the allegations set out in the charge-sheet do constitute the offence of which charge has been framed by the trial Court.
31. In the case on hand, apart from specific allegations against the petitioners that they contrary to the order passed by the Collector on 30th June, 1995, passed an order for diversion of agriculture land by holding that the land in question is not affected by ceiling. In those circumstances, whether the ceiling proceedings in respect of the land in question is pending or not has to be considered only at tie time of trial. From the perusal of the material available on record, it is not a case where it can be said that no offence is made out against the petitioners. The acceptability of the materials to fasten culpability on the accused persons is a matter of trial.
32. In the light of the above principles and the materials placed by the parties, we are satisfied that the trial Court was justified in framing the charges against the petitioners and taking cognizance against them.
33. It is also fairly settled that the powers vested in the High Court u/s 482 CrPC have to be exercised sparingly and that the Court cannot be called upon to appreciate the available evidence or material with a view to find out whether the charge levelled against the accused stands proved.
34. We make it clear that we have not expressed any opinion on merits of the case. For the above mentioned reasons, no case for quashment of the proceedings or quashment of charge framed against the accused persons is made out. The petitions filed by the petitioners u/s 482 of CrPC and criminal revisions have no merit and are accordingly, dismissed.
