Kedar Jatav vs State of M.P. and another

D.K. Paliwal, J.—This revision petition is filed under Sections 397/401 of Cr.P.C. against the order dated 06/10/2009 passed by the learned Judicial Magistrate First Class, Gohad, District Bhind, in Criminal case No. 733/09 taking cognizance against the petitioner under Sections 420, 120(B) of Cr.P.C. The brief facts of the petition are that respondent No. 2 Ramsiya has filed a private complaint under Sections 420, 467, 468, 471 of I.P.C. alleging that she has 1/4th share in agricultural land bearing Survey Nos. 411, 412, 417, 419, 420 situated at village Adupura. It is further stated that in Survey No. 420 area 1.45 hectare a house is constructed having a well and boring and the complainant and her brothers are the joint owners of the aforesaid house, but Jagdish Prasad in connivance with other accused persons got his name mutated in revenue record and became the sole owner of Survey No. 420 by getting the land partitioned on the basis of forged documents and by getting the name of respondent No. 2 struck off from the revenue papers. The land of Survey No. 420 is valuable. It is further alleged that the accused persons were fully aware that Gram Panchayat has no authority to order the partition. On the basis of the aforesaid partition, valuable land has been grabbed by Jagdish Prasad and co-accused. Learned J.M.F.C., Gohad, after recording the statements of the complainant as well as his witnesses under Sections 200 and 202 of Cr.P.C. has taken cognizance against the petitioner and co-accused under Sections 420 and 120(B) of IPC. Being aggrieved, the petitioner has preferred this revision petition.

It is submitted that the petitioner is the Secretary of the Gram Panchayat. As per the procedure the application is filed before the Gram Panchayat, on which, the report of Patwari is called and the Patwari after due inquiry places the report before the Gram Panchayat and the Gram Panchayat after considering it, passes the order of partition. In the present case, the Patwari has submitted the report before the Gram Panchayat and on 16.04.2007 the Gram Panchayat passed the resolution and according to the resolution, the petitioner directed the concerned Patwari to take further action. Therefore, the petitioner is not responsible for the alleged partition. Learned trial Court has committed a grave error in taking cognizance against the petitioner and prayed that the order of taking cognizance be set-aside.

Learned counsel for respondent No. 2 supported the impugned order and submitted that prima facie there is sufficient material to proceed against the petitioner, hence, learned Judicial Magistrate First Class has not committed any illegality or irregularity in passing the impugned order, hence, prays for dismissal of revision petition.

In order to appreciate the contentions of the learned counsel for the parties, I have perused the record.

On perusal of the private complaint filed by respondent No. 2/complainant, it appears that the complainant has 1/4th share in agricultural land bearing survey Nos. 411, 412, 417, 419 and 420 situated at village Adupura, but Jagdish Prasad, who is his brother, with the connivance of Ramswaroop, Kedar Jatav and Mahesh Kumar got the land partitioned by forging the documents and got the name of respondent No. 2 struck off from the revenue papers.

Ramsiya in his statement has stated that Jagdish is his elder brother, Ramswaroop is the Sarpanch, Kedar is the secretary and Mahesh is the Patwari of his village. Jagdish with the connivance of Ramswaroop Sarpanch, Secretary Kedar and Mahesh Patwari got the land partitioned without his knowledge. No specific allegation has been made against the petitioner as to what document he prepared and forged.

Indisputably, the petitioner is the secretary of Gram Panchayat, Makhori. The power for partition of the agricultural land is vested in Gram Panchayat. From the perusal of the copy of the agenda, it appears that meeting of the Gram Panchayat was convened on 10.4.2007 at 9 a.m. and the agenda was mutation and partition. From the perusal of the proposal passed by the Gram Sabha, it appears that the Patwari has submitted the Fard for partition of the agricultural land between Jagdish, Ramsiya and Munnalal and the Gram Panchayat vide its resolution has approved the partition as per the fard prepared by the Patwari. The secretary has directed the Patwari for effecting the partition as per resolution of the Gram Panchayat.

Thus, prima facie there is no role of the Secretary of the Gram Panchayat in the partition. Gram Panchayat has ordered for partition by passing a resolution in its meeting and the petitioner being its Secretary, has directed the Patwari to take necessary action. The impugned order passed by the learned Magistrate, reveals that Jagdish Prasad conspired with Ramswaroop, Kedar and Mahesh with intention to cheat the complainant and got the agricultural land partitioned. The order of partition has been set aside by the SDO, therefore, prima facie commission of offence under Sections 420, and 120-B of IPC is made out, hence, cognizance has been taken. From the perusal of the order passed by the SDO, it appears that in case No. 40/2007-08 appeal on 24.6.2009, the learned SDO has categorically observed that the concerned Mauja Patwari of the Gram Panchayat has not adopted the procedure provided by law for effecting partition, therefore, the resolution passed by the Gram Panchayat has been set aside. Even in this order, the learned SDO has not prima facie found that petitioner has played any role in passing the order of partition. The order passed by the learned Magistrate reveals that he has not applied its mind to the facts alleged in the case as well as the procedure provided for partition. He has mechanically passed the order of cognizance. Prima facie there is no material showing that petitioner has entered into conspiracy with Jagdish, Mahesh Kumar the then Patwari and Ramswaroop the then Sarpanch of the Gram Panchayat, Makhori. In view of above discussion, this revision petition deserves to be allowed. Consequently, it is allowed. The order of the learned Judicial Magistrate First Class, Gohad, District Bhind in Criminal case No. 733/09 taking cognizance against the petitioner for the offence punishable under Sections 420 and 120B of Cr.P.C. is set aside.