Abdul Haq vs State of Punjab

R.L. Anand, J.

Abdul Haq, Revenue Patwari and Lakhmi Chand Kataria, Tehsildar, have filed the present petition under Section 482, Cr.P.C. for the quashment of the complaint and the summoning order dated 19.12.1995, passed by the Judicial Magistrate Ist Class, Ferozepur Jhirka, and the order dated 18.5.1996 vide which the application for reconsideration of the summoning order 19.12.1995, was dismissed.

The brief facts of the case are that Abdul Aziz and Babu Ram, respondents No. 2 and 3, filed a criminal complaint u/s 165/166, IPC, against Lakhmi Chand Kataria, Tehsildar, Ferozepur Jhirka, Kifayatullah, Kanungo and Abdul Haq, Patwari, alleging that they are the owners in possession of 1/2 share i.e. 6 kanals 5 marlas comprised in Rectangle No. 172 killa No. 3(410), 8(62), 13/2(119), situated at Byepass Ferozepur Jhirka, DelhiAjmer Road. The complainants purchased the above mentioned land from Amar Chand, presently residing at Hari Nagar, Delhi and Smt. Jagwati, through registered sale deed dated 15.1.1993, registered in the office of the Registrar, Delhi. As such, the complainants are the owners in possession of the land. Mutation was not entered and accepted in the name of the complainants. The complainants asked for entries of mutation but the accused asked the complainants that there is a fee of Rs. 2,000/ for the entry of the mutation. Resultantly the complainants gave Rs. 2,000/ as fee to the accused. On 20.4.1995, the complainants went to the accused along with Om Parkash and Surjeet and asked them to enter the mutation of the land as they have already paid Rs. 2,000/ as fee but the accused demanded Rs. 10,000/ more and said that only then the mutation can be entered. According to the complainants, they are poor persons and not in capacity to pay Rs. 10,000/. They told the accused that they are not in a position to pay the amount upon which the accused pushed them out of the office and said that "your mutation cannot be entered, you can do whatever you want." On this, the complainants requested the accused a number of times but to not effect. So much so, they made an application to the SDO (Civil), Ferozepur Jhirka, but still no action has been taken. The complainants even asked the accused to return Rs. 2,000/ as their work had not been done but they were threatened.

On the above allegations, the preliminary evidence was recorded. The learned Magistrate vide order dated 19.12.1995 summoned the accused under section 166, IPC, for the reasons given in paras 6 to 10, which read as under :

"6. Action under Section 7, 10, 11, 13 and 15 of the Prevention of Corruption Act 1988 cannot be taken in view of section 19 of that Act.

Offence u/s 166 IPC is against official perversity. If the act of a public servant causes injury to any other person by his violation of rule of law regulating his conduct. Such violation of express direction of law carries penal consequences. If public servant or the servant of Govt. is not faithfully discharging his duties, he is liable to indictment criminally. Violation of rules of law includes abuse of official authority, thus genesis of offence arises from wilful disobedience. Mere breach of departmental rules and regulation does not invite punishment nor mere inadvertence or negligence is sufficient to fasten penal liability. Such inadvertence or negligence should be intentioned and patently designed to cause injury to other person. Such wilful disobedience is generally for ulterior corrupt motive, which need not necessarily result in permanent deprivation of property. For instance a decree holder is delayed in the recovery of his debt. Injury is caused not only on body but it may be in mind and imputation. Refusing to execute process till the Govt. servant is paid or to take a bond for his fee before execution issued out is extortion and punishable under the law. Thus to attract penal action u/s 166 IPC following ingredients should be established by the person seeking to prosecution the Govt. Servant :

(a) Accused should be Govt. servant,

(b) He should conduct himself in disobedience of a direction of law,

(c) He should disobey the direction of law knowingly, and

(d) In such deliberate disobedience his intention or knowledge should be that he was likely to cause an injury to the person complaining.

If the complainants claim that they are owners in possession of the some property and wanted to get the mutation sanctioned in their favour and they produced sale deed for entering and sanction of mutation it was incumbent upon the accused to do the same as per law. Though, there is no documentary evidence on record that the complainant went to the office of accused, tendered copy of sale deed deposited required fees as per law and prayed for sanction of mutation I find it difficult to disbelieve and discard their oral testimony for no apprehendable reason at the stage of summoning. Process is to be issued when the court is taking cognizance and is of the opinion that there are sufficient grounds for proceeding against the accused. It is possible that the complainants may be telling lies to falsely implicate the accused to make them to fall in line with their wishes the possibility of their being genuinely aggrieved cannot be ruled out. When both the possibilities have equal chances, the accused should be summoned to face trial.

Taken from another angle prima facie it is to be seen whether protection u/s 197 Cr.P.C. is available to the accused nor not. Reliance was made on authority Joginder Singh, ASI CIA Staff, Ludhiana v. State of Punjab, 1990 RCR 479, wherein Hon''ble Mr. Justice S.S. Grewal was pleased to observe that police officer arrested a person and recovered Rs. 19,000/ an embezzlement amount cannot be termed as discharge of his official duties and therefore no sanction u/s 197(2) Cr.P.C. was required. In authority S.S. Shah v. M.S. Kochhar, AIR 1979 SC 1841, the factors to be considered while granting protection of sanction u/s 197(2) Cr.P.C. were highlighted. Section 197 Cr.P.C. is protection to the Govt. servants against mischievous and false involvement in criminal cases. However, the protection available u/s 197 Cr.P.C. cannot be used as an umbrella for misdeeds, mischiefs and disobedience of law. In my opinion accused are not entitled to the protection of section 197 Cr.P.C. sanction of mutation in favour of complainants is not material because if it is not merited it can be declined/rejected but even not entry of mutation is direct violation of direction of law and principle of natural justice which amounted to refusal to right of audience.

There are grounds to proceed ahead in the complaint. All the accused be therefore, summoned u/s 166 IPC at the expense of complainants for 5.2.1996. Process fee etc. be filed within three weeks."

In pursuance of the said order, the petitioners appeared before the Magistrate. They did not challenge this order of summoning dated 19.12.1995 but filed an application for the review of the order dated 19.12.1995. The said application was dismissed for the reasons given in paras 2 and 3 of the order dated 18.5.1996, which read as under :

"2. Court of Magistrate does not have inherent power under section 482 Cr.P.C. nor power to review its own order u/s 204 of Code of Criminal Procedure. However, Hon''ble Supreme Court in authority K.M. Mathews v. State, AIR 1992 SC 2206 observed that after appearance of accused on summoning in a private complaint no proceeding under Chapter XX of Cr.P.C. could be conducted if allegation did not disclose that accused had committed any offence. Court of Magistrate has no jurisdiction to proceed in such circumstances and court can reassess the allegation and may reach a conclusion that the process ought to have not been issued. Withdrawal of proceedings is judicial discretion and no special provision is required in the Code as order of summoning is an interim order and not a judgment. These observations were followed in Bhagat Ram v. Gurbhaj Singh, 1994(1) CCJ 19, wherein it was added that if the complaint taken on the face of it does not disclose any offence, order of summoning can be varied or recalled or proceedings can be dropped. These are the authorities from which accused drive force and seek review of order of summoning. If in absence of any special provision in law the court reaches to a conclusion that there are circumstances warranting interference in summoning, it should review its own orders. Law laid down in the aforesaid authorities can be evoked in rare case as judicial discretion where :

(a) Complaint does not disclose any offence and where summoning orders could not have been made;

(b) Subsequent facts brought to the knowledge of the court warranted modification, alteration or cancellation of summoning order. Earlier order of summoning was based on concealment, halfbaked facts.

(c) Summon order was secured to appears the accused party to set scores and there was abuse of process of law.

(d) Interference in the summoning order is to be made only to check the abuse of the process of law and for furtherance of meeting ends of justice.

Accused alleged that order of summoning was obtained by concealment and misrepresentation of facts and no prima facie was made out against them. Section 166 IPC is attracted when public servant disobeys the direction of law with intent to cause injury to any person. It is claimed that the complainants were neither owner nor in possession of property and as such had no right in the agriculture land qua which they wanted to get mutation sanctioned from accused. Sale deed dated 15.1.1993 in their favour is alleged to be bogus and vendors are alleged not the owners and incompetent to execute the said sale deed. It is also claimed that sale deed dated 15.1.1993 had not passed any title and as per law revenue authorities could not sanction mutation of sale dated 15.1.1993 which is alleged bogus and contrary to the facts. It appears that used (revenue authorities) have assumed power to test legality valid and proprietary of sale deed which authority law does not confer upon it. Accused/complainants claim that civil court decree dated 31.1.1997 did not pass any title in favour of vendor Amar Chand on the strength of sale deed dated 15.1.1993 was executed. Against rationale is misconceived as revenue authorities are not competent to question validity of a decree passed by civil court. Decree by civil court is binding on the revenue courts. It is also claimed that sale deed dated 15.1.1993 was executed and got registered at Delhi i.e. beyond territorial jurisdiction of Sub Registrar, Ferozepur Jhirka where the property covered under the sale deed was located. It appears that applicants are not aware of law governing their own office."

Still not satisfied with the two orders, the present petition, which I am inclined to dispose of in limine, after hearing Mr. R.S. Cheema, Sr. Advocate, counsel for the petitioners.

The counsel submitted that as per the allegations of the FIR, at the most, the offence under the Prevention of Corruption Act is made out. The complainants had not approached the court of the Special Judge for the offence u/s 7(1)(d) of the Prevention of Corruption Act, 1988. They have adopted to file the complaint u/ss 165/166, IPC. Section 165, IPC, has already been repealed by the Prevention of Corruption Act. In these circumstances, the learned Magistrate had no jurisdiction to entertain the complaint u/s 166, IPC, or to proceed against the petitioner under those provisions. It was also submitted by the counsel for the petitioners that it was none of the duty of the present petitioners to enter the mutation and, in these circumstances, the petitioners, prima facie, have not committed any offence u/s 166, IPC, and the summoning of the petitioners under the said provision of law on the face of it is illegal and by not reviewing the order, the learned Magistrate had committed another illegality vide his order dated 18.5.1996.

The counsel submitted that in fact the complainants were neither the owners nor in possession nor they had any right, title or interest in the land allegedly purchased by them, therefore, it was none of the duty of the petitioners to enter the mutation. The learned counsel submitted that the complainants had purchased the land from Amar Chand and Smt. Jagwati, but the vendors were not recorded as owners of the land in the revenue record, therefore, the mutation could not be entered. Moreover, the Tehsildar was not required to enter the mutation. It was the duty of the Patwari or the Kanungo to enter the mutation which would only be attested by the Tehsildar and, in these circumstances, the trial court had committed a patent illegality atleast in summoning the Tehsildar for the offence u/s 166, IPC, the ingredients of which are not attracted in the facts in hand. Also it was submitted that the sale deed which was executed in this case was a void document in the eyes of law as it was executed in Delhi beyond the jurisdiction of the Tehsil where the property was situated.

I have considered the submissions raised by the counsel for the petitioner and I am of the opinion that no aid can be given to the petitioners in the proceedings u/s 482, Cr.P.C. especially when they have been summoned by the court which order has not been challenged in revision or in appeal by the petitioners. The petitioners were summoned in 1995 and that order was not challenged by the petitioners earlier in the High Court in the proceedings u/s 482, Cr.P.C. They have approached the High Court after a lapse of 3 years after the passing of the first order. Section 482, Cr.P.C. is not a remedy of appeal nor it is a remedy of review. Rather, it is a remedy where the High Court will strike if it comes to the conclusion that the action taken by the complainant is flagrant misuse of the provisions of law or that in the interest of justice, it has become necessary to invoke the extraordinary provisions. The High Court cannot substitute its own opinion over the opinion of the Magistrate until and unless, the High Court comes to a particular conclusion that the order of initiation of the proceedings against the litigant was nothing but an abuse of process of law. The petitioners have availed the remedy perhaps u/s 245, Cr.P.C. requesting the court for recalling of the order and for dismissing the complaint, but that prayer was declined by a subsequent order. At this juncture, the defences are not supposed to be seen. We have to go by the allegations. The present two petitioners are Tehsildar and Revenue Patwari. We all know that after the execution of the sale deed, the vendee presents the sale deed or the copy of the same before the revenue authorities for entering the mutation in his name with regard to the land purchased by him. It is the duty of the Patwari to enter the mutation and after entering the same, it is supposed to be put up before the Naib Tehsildar or Tehsildar as the case may be, for attestation. The Tehsildar, then, holds a camp; visits the village in which the land is situated and the vendors are called to make a deposition in support of their sale deed. The vendors are identified by the respectables/Lambardar/Sarpanch, etc. and on their identification, the mutation is attested. If the mutation is contested, the Tehsildar/Naib Tehsildar can pass an administrative order in this regard which will be again subject to appeal etc. We have to go by the allegations while deciding as to whether the complaint is to be quashed or not. The case of the complainants is specific that they approached the two petitioners and their companion for entering the mutation. The petitioners made a demand of Rs. 2,000/, which were paid. Apart from committing a substantive offence under the Prevention of Corruption Act, if the court finds that the petitioners have also committed another offence punishable under the IPC, there is no bar on the part of the Magistrate to take cognizance of that matter. When the sale deed was presented, it was the duty of the petitioners to enter the same. It was their duty to attest the mutation or not to attest the same keeping in view the merits of the particular case. It was none of their concern to make an additional demand of Rs. 10,000/. If a mutation is not entered or is not attested or is rejected, according to the procedure, it will certainly cause an injury to the person who presented the document. The ingredients of section 166, IPC are that (1) a person must be a public servant, (2) he knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant and, (3) intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person.

By not entering the mutation or by not discharging their duty according to law, the petitioners have, prima facie, violated the first ingredient. With the violation of the first ingredient, they have created an injury to the vendor, who could not get their documents entered or attested in the revenue record. The third ingredient is also attracted because the petitioners, who were duty bound to enter and attest the mutation or to reject the same, could very well know that by their act they are in a position to cause the injury to the affected complainants. Even if it is assumed for the sake of arguments that the interpretation which has been given by the Magistrate by invoking the provisions of section 161, IPC, is erroneous, still that interpretation cannot be held to be illegal. The question of quashment of the proceedings does not arise especially after a lapse of 2/3 years.

Resultantly, I do not see any merit in this petition and dismiss the same in limine.