Andhra Pradesh High Court - Amravati
M.Sharil Babu vs B.Suryanarayana on 2 September, 2024
`
APHC010052822019
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3333]
(Special Original Jurisdiction)
MONDAY ,THE SECOND DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE V.SUJATHA
CRIMINAL PETITION NO: 1146/2019
Between:
M.sharil Babu ...PETITIONER/ACCUSED
AND
B Suryanarayana and Others ...RESPONDENT/COMPLAINANT(S)
Counsel for the Petitioner/accused:
1. JADA SRAVAN KUMAR
Counsel for the Respondent/complainant(S):
1. S DILIP JAYA RAM
2. PUBLIC PROSECUTOR (AP)
The Court made the following:
2
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ORDER:
This criminal petition is filed under Section 482 of Criminal
Procedure Code (for short "Cr.P.C.") to quash the proceedings in
C.C.No.399 of 2016 on the file of the Junior Civil Judge, Piduguralla,
registered for the offences punishable under Sections 420, 468,
471, 409, 120 (B) read with 34 of Indian Penal Code (for short
"I.P.C.").
2) Petitioner herein is accused No.6. Respondent No.1 is the
complainant. Respondent No.1 filed a complaint under Section 190
read with 200 of Cr.P.C. before the Junior Civil Judge, Piduguralla,
alleging that accused Nos.1 and 2 are close associates, and with a
view to cheat the complainant and his wife, they approached
accused No.5, Village Revenue Officer of Piduguralla and all of
them conspired together and created a document dated 20.05.2014
styled as Certificate for Registration addressed to Sub-Registrar,
Piduguralla as if accused No.2 has got title in respect of an extent of
Ac.0.30 in Sy.No.231/A and using the said document, accused
Nos.1 and 2 fabricated a registered sale deed dated 24.05.2014
(Doc.No.1726/2014 of SRO Piduguralla) for an extent of Ac.0.21
cents in favour of accused No.1. By creating such document, they
approached the complainant and made him to believe that accused
No.1 has got good title over the property in view of the sale deed
executed by accused No.2 as per the certificate issued by accused
No.5 and that accused No.1 is in dire need of Rs.10,00,000/- and he
is ready to mortgage the said extent of Ac.0.21 cents worth more
than Rs.45,00,000/- purchased under the said sale deed. The
complainant believing their words lent a sum of Rs.5,00,000/- and
got his wife to lent another sum of Rs.5,00,000/- under two
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separate mortgage deeds dated 3.06.2014 bearing document
Nos.1824 of 2014 and 1825 of 2014 respectively. Accused No.1
handed over his original title deed to the complainant. Thereafter, on
28.06.2014, accused Nos.1 to 4 and 6 colluded, conspired and got
created a registered cancellation deed by cancelling the sale deed
dated 24.05.2014. Accused Nos.3 and 4 - attestors assisted
accused Nos.1 and 2 for execution of the cancellation of sale deed.
Accused No.6 registered the said cancellation deed though the
original document was not produced before him and also knowing
that the property described in the said deed is under mortgage
before the complainant. On coming to know about the same, the
complainant lodged a complaint with the police on 03.07.2014, as
police did not take any action against the accused, he made a
complaint to Superintendent of Police on 25.08.2014. Subsequently,
the complainant made a report dated 08.09.2014 to the District
Collector for prosecution of accused Nos.5 and 6. The said
complaint was referred to police for investigation. On receiving the
same, police registered the said complaint as FIR No.239 of 2014
on the file of Piduguralla Police Station for the offence punishable
under Section 420, 468, 471, 409, 120-B read with 34 of I.P.C.
3) After completion of the investigation, police filed charge sheet,
which was numbered as C.C.No.57 of 2016, against accused Nos.1
and 2 for the offence punishable under Section 420 of I.P.C. only by
deleting the Sections 468, 471, 409 and 120-B of I.P.C. and also the
names of accused Nos.3 to 6.
4) Aggrieved by the action of police in deleting the names of
accused Nos.3 to 6, defacto complainant filed protest petition in the
trial Court requesting the Court to add the names of accused Nos.3
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to 6 in the charge sheet and take cognizance for the offence
punishable under Sections 420, 468, 471, 120-B read with 34 of
I.P.C. The said protest petition filed by the complainant was
numbered as C.C.No.399 of 2016 by the trial Court. After recording
the sworn statement of the defacto complainant, the trial Court
allowed the protest petition filed by the defacto complainant on the
ground that there is sufficient material to take cognizance of the
offence under Section 420, 468, 471, 120-B read with 34 of I.P.C.
The present petition has been filed by accused No.6 - Sub
Registrar to quash the proceedings in C.C.No.399 of 2016.
5) Learned counsel for the petitioner contended that the
petitioner - accused No.6 is Sub-Registrar and the only allegation
made in the complaint is that he registered the sale deed dated
24.05.2014 executed by accused No.1 in favour of accused No.2
and that accused Nos.1 to 4 and accused No.6 colluded and got
created a registered cancellation deed without verifying the original
sale deed. Except the said allegation, nothing else is stated in the
complaint against the petitioner. The petitioner was on leave on the
day the sale deed dated 24.05.2014 was executed. Petitioner
registered the mortgage deeds and cancellation deed executed by
accused Nos.1 and 2 in accordance with the provisions of the
Registration Act. The sale deed dated 24.05.2014 bearing
Doc.No.1726 of 2014 was cancelled in view of provisions of Rule 26
(k) of the registration Rules. Therefore, the petitioner acted within
the parameters stipulated in the Rules and that he has not
committed any illegality in registering the Mortgage deed and the
cancellation deed. Therefore, the alleged acts committed by the
petitioner are in discharge of his duties, as such prior sanction under
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Section 197 of Cr.P.C. is necessary before taking cognizance of the
offence against the petitioner, therefore, continuation of criminal
proceedings against the petitioner is nothing but abuse of process of
Court. In support of his contentions, he relied on the judgments of
the various High Courts and the Supreme Court, which will be
referred to at appropriate stage.
6) Learned counsel for respondent No.1/complainant contended
that accused Nos.1 to 4 and 6 (petitioner herein) colluded,
conspired and got created a registered cancellation deed by
cancelling the sale deed dated 24.05.2014. Further, the petitioner
herein registered the said cancellation deed without verifying the
original sale deed and also knowing that the property shown in the
said deed is under mortgage before the complainant, and that the
petitioner misused his powers and registered the cancellation deed
by cancelling the sale deed dated 24.05.2014 and committed
offence punishable under Sections 420, 468, 471, 120(B) of I.P.C.
and requested to dismiss the petition. In support of his contentions,
he relied on the judgments of the various High Courts and the
Supreme Court, which will be referred to at appropriate stage.
7) Learned Public Prosecutor contended that the allegations
made in the complaint would constitute the offence punishable
under Sections 420, 468, 471, 409, 120 (B) of I.P.C. and that the
order passed by the trial Court on the protest petition filed by the
complainant is in accordance with law and requested to dismiss the
petition.
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8) Having heard the submissions made by the learned counsel
representing both parties and on perusal of the material available on
record, the point that arises for consideration is as follows:
"Whether failure to obtain sanction under Section 197 of
Cr.P.C. to prosecute the petitioner for the offences
punishable under the provisions of Indian Penal Code is
sufficient to quash the proceedings against the
petitioner?"
P O I N T:
9) The present petition has been filed under Section 482 of
Cr.P.C.
10) Section 482 of Cr.P.C saves the inherent powers of the High
Court to make such orders as may be necessary to give effect to
any order under the Code or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice. It is an obvious
proposition that when a Court has authority to make an order, it
must have also power to carry that order into effect. If an order can
lawfully be made, it must be carried out; otherwise it would be
useless to make it. The authority of the Court exists for the
advancement of justice, and if any attempt is made to abuse that
authority so as to produce injustice, the Court must have power to
prevent that abuse. In the absence of such power the administration
of law would fail to serve the purpose for which alone the Court
exists, namely to promote justice and to prevent injustice. Section
482 of Cr.P.C confers no new powers but merely safeguards
existing powers possessed by the High Court. Such power has to be
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exercised sparingly in exceptional cases and this power is external
in nature to meet the ends of justice.
11) Time and again, the scope of powers of this Court under
Section 482 of Cr.P.C. were highlighted by the Apex Court in long
line of perspective pronouncements, which are as follows:
12) Section 482 of the Code of Criminal Procedure empowers the
High Court to exercise its inherent power to prevent abuse of the
process of Court. In proceedings instituted on complaint exercise of
the inherent power to quash the proceedings is called for only in
cases where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the allegations set out in the
complaint do not constitute the offence of which cognizance is taken
by the Magistrate it is open to the High Court to quash the same in
exercise of the inherent powers under Section 482. It is not,
however, necessary that there should be a meticulous analysis of
the case, before the trial to find out whether the case would end in
conviction or not. The complaint has to be read as a whole. If it
appears on a consideration of the allegations, in the light of the
statement on oath of the complainant that ingredients of the
offence/offences are disclosed, and there is no material to show that
the complaint is mala fide, frivolous or vexatious. In that event there
would be no justification for interference by the High Court as held
by the Apex Court in "Mrs.Dhanalakshmi v. R.Prasanna Kumar1"
13) Keeping in view the above principles, I would like to examine
the case on hand.
AIR 1990 SC 494
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14) The only allegation made in the complaint against the
petitioner is that he registered the sale deed dated 24.05.2014
executed by accused No.1 in favour of accused No.2 and that
accused Nos.1 to 4 and accused No.6 colluded and got created a
registered cancellation deed dated 28.06.2014 cancelling the sale
deed dated 24.05.2014 without verifying original sale deed knowing
that the property is under mortgage.
15) The contention of the petitioner is that he acted within the
parameters stipulated in the rules and that he has not committed
any illegality in registering the mortgage deed and cancellation
deed, and that as he is a public servant, prior sanction under
Section 197 of Cr.P.C. is necessary before taking cognizance of the
offence against him. The complainant lodged the present complaint
with a view to harass the petitioner. Further, learned Magistrate has
not assigned any reasons for taking the cognizance against the
petitioner.
16) Section 197 of Cr.P.C. deals with prosecution of Judges and
public servants, which reads thus:
"197. Prosecution of Judges and public servants.
(1)When any person who is or was a Judge or
Magistrate or a public servant not removable from his officer
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;
(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 :
[Provided that where the alleged offence was
committed by a person referred to in clause (b) during the
period while a Proclamation issued under clause (1) of
Article 356 of the Constitution was in force in a State, clause
(b) will apply as if for the expression "State Government"
occurring therein, the expression "Central Government"
were substituted.] [Added by Act 43 of 1991, Section 2
(w.e.f. 2-5-1991).]"
17) The object and purpose underlying Section 197 Cr.P.C is to
afford protection to public servants against frivolous, vexatious or
false prosecution for offences alleged to have been committed by
them while acting or purporting to act in the discharge of their official
duty. The larger interest of the efficiency of State administration
demands that public servants should be free to perform their official
duty fearlessly and undeterred by apprehension of their possible
prosecution at the instance of private parties to whom annoyance of
injury may have been caused by their legitimate acts done in the
discharge of their official duty. Section 197 Cr.P.C is designed to
facilitate effective and unhampered performance of their official duty
by public servants by providing for scrutiny into the allegations of
commission of offence by them by their superior authorities and
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prior sanction for their prosecution as condition precedent to the
cognizance of the offence against them by Court. (vide B.P.
Srivastava Vs. N.D. Mishra2)
18) Thus, the Court must scrutinise the allegations in the
complaint and find out whether those omissions or commissions
allegedly committed by the petitioner while discharging his official
duties based on nexus test. But, at what stage, such question can
be considered is again difficult to decide, because of the law
declared by the Apex Court in long line of perspective
pronouncements.
19) In "State of Himachal Pradesh Vs. M.P.Gupta3", relied on by
the learned counsel for the petitioner, the Apex Court held as
follows:
"..........So far public servants are concerned the
cognizance of any offence, by any court, is barred by Section 197
of the Code unless sanction is obtained from the appropriate
authority, if the offence, alleged to have, been committed, was in
discharge of the official duty. The section not only specifies the
persons to whom the protection is afforded but it also specifies
the conditions and circumstances in which it shall be available
and the effect in law if the conditions are satisfied. The mandatory
character of the protection afforded to a public servant is brought
out by the expression, no court shall take cognizance of such
offence except with the previous sanction".
20) In "Maksud Saiyed Vs. State of Gujarat4" relied on by the
learned counsel for the petitioner, the Apex Court held that the
AIR 1970 SC 1661
(2004) 2 SCC 349
(2008) 5 SCC 668
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learned Magistrate has to keep in mind the principle laid down in
"Pepsi Foods Limited Vs. Special Judicial Magistrate5", wherein
the Apex Court held as follows:
"Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring only two
witnesses to support his allegations in the complaint to have the
criminal law set into motion. The order of the Magistrate
summoning the accused must reflect 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."
21) In "Shadakshari Vs. State of Karnataka6" relied on by the
learned counsel for the petitioner, the Apex Court held as follows:
"The ambit, scope and effect of Section 197 Code of
Criminal Procedure has received considerable attention of this
Court. It is not necessary to advert to and dilate on all such
decisions. Suffice it to say that the object of such sanction for
prosecution is to protect a public servant discharging official
(1998) 5 SCC 749
AIR 2024 SC 590
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duties and functions from undue harassment by initiation of
frivolous criminal proceedings."
22) The law laid down in the said judgments is not in dispute.
23) In "Devinder Singh Vs. State of Punjab through CBI 7 "
relied on by the learned counsel for respondent No.1, the Apex
Court held that "question of sanction may arise at any stage of
proceedings. On a police or judicial inquiry or in course of evidence
during trial. Whether sanction is necessary or not may have to be
determined from stage to stage and material brought on record
depending upon facts of each case. Question of sanction can be
considered at any stage of the proceedings. Necessity for sanction
may reveal itself in the course of the progress of the case and it
would be open to accused to place material during the course of trial
for showing what his duty was. Accused has the right to lead
evidence in support of his case on merits."
24) In "N.Shankar Prasad Vs. State of Andhra Pradesh8", relied
on by the learned counsel for respondent No.1. the Apex Court held
as follows:
"On a close perusal of the Section 197 Cr.P.C, it becomes
clear that to invite its applicability, it has to be determined whether
the alleged act was committed in the discharge of official duty or
not. More so, the Hon'ble Supreme Court in K. Kalimuthu Vs.
State ((2005) 4 SCC 512.) observed that the question relating to
the need of sanction under Section 197 Cr.P.C need not
necessarily be considered as soon as the complaint is lodged
based on the allegations therein and that the question may arise
AIR 2016 SC 2090
2024 SCC OnLine AP 2757
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at any stage of the proceeding. This Court cannot conduct a mini
trial while exercising its jurisdiction under Section 482 Cr.P.C. As
there are specific allegations against the Petitioner/Accused No.5,
this Court is of the view that it is not desirable to quash the
proceedings against the Petitioner, at this stage and accordingly
the petition is liable to be dismissed."
25) In the present case, sanction under Section 197 Cr.P.C. was
not obtained so far. But by applying the said principle, it can be said
that sanction under Section 197 of Cr.P.C. need not necessarily be
considered as soon as the complaint is lodged.
26) In "Satyapal Anand Vs. State of Madhya Pradesh 9 " the
Apex Court held as follows:
"At the same time, once the document is registered, it is
not open to the Registering Officer to cancel that registration even
if his attention is invited to some irregularity committed during the
registration of the document. The aggrieved party can challenge
the registration and validity of the document before the Civil
Court. The majority view of the Full Bench was that if a person is
aggrieved by the Extinguishment Deed or its registration, his
remedy is to seek appropriate relief in the Civil Court and a Writ
Petition is not the proper remedy."
27) In "State of Odisha Vs. Pratima Mohanty Etc.,10" the Apex
Court held that "if a public servant abuses his office whether by his
act of omission or commission, and the consequence of that is injury
to an individual or loss of public property, an action may be
maintained against such public servant." It is further observed that
(2016) 10 SCC 767
2021 SCC OnLine SC 1222
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no public servant can arrogate to himself powers in a manner which
is arbitrary.
28) In "S.A.Azeez Vs. Pasam Hari Babu 11 ", this Court while
referring to "P.K.Pradhan Vs. State of Sikkim 12 "held that there
must be a reasonable connection between the act and the official
duty and it does not matter even if the act exceeds what is strictly
necessary for the discharge of duty as this question will arise only at
a later stage when the trial proceeds on merits.
29) In "Matajog Dobey Vs. H.C. Bhari13, the Constitution Bench
further observed that the necessity for sanction may reveal itself
in the course of the progress of the case and it would be open
to the accused to place the material on record during the
course of trial for showing what his duty was and also the acts
complained of were so interrelated with his official duty so as
to attract the protection afforded by Section 197 of the Code of
Criminal Procedure.
30) In view of the principle laid down in the said judgments, the
question whether the act complained of against the petitioner is in
exercise of his public duty is a question of fact to be determined at
the time of trial only. So, merely on the ground of want of sanction,
the proceedings cannot be quashed against the petitioner.
31) Further, learned counsel for the petitioner contended that the
petitioner has power to cancel the document in view of the power
conferred on him by virtue of Rule 26 (k) (i) of the Andhra Pradesh
2003 CriLJ 2462
AIR 2001 Supreme Court 2547
1955(2) SCR 925
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Rules under the Registration Act, 1908. For better appreciation,
Rule 26 (k) (i) is extracted hereunder.
"(i) The registering officer shall ensure at the time of
presentation for registration of cancellation deeds of previously
registered deed of conveyances on sale before him that such
cancellation deeds are executed by all the executant and claimant
parties to the previously registered conveyance on sale and that
such cancellation deed is accompanied by a declaration showing
natural consent or orders of a competent civil or High Court or
State or Central Government annulling the transaction contained
in the previously registered deed of conveyance on sale:
Provided that the registering officer shall dispense with the
execution of cancellation deeds by executant and claimant parties
to the previously registered deeds of conveyances on sale before
him if the cancellation deed is executed by a Civil Judge or a
Government Officer competent to execute Government orders
declaring the properties contained in the previously registered
conveyance on sale to be Government or Assigned or
Endowment lands or properties not register able by any provision
of law."
32) The above Rule clearly states that cancellation deed must be
accompanied by a declaration showing mutual consent or orders of
a competent Civil or High Court or State or Central Government
annulling the transaction contained in the previously registered deed
of conveyance on sale, and then only the cancellation deed can be
registered and that too after notice to the concerned parties.
33) In the present facts of the case, whether the cancellation
deed presented by accused No.1 is having mutual consent or
whether there is any order of a competent civil Court or High Court
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to cancel the earlier document, is a question to be decided during
the course of trial. Further, the complainant asserted that the
document dated 24.05.2014 was cancelled by accused No.6 without
verifying the original sale deed. It is also the case of the petitioner
that he himself has executed mortgage deeds and cancellation deed
dated 28.06.2014, which proves that the petitioner was very much
aware that the property involved in the sale deed dated 24.05.2014
was mortgaged with the defacto complainant and without the
consent of the defacto complainant, he has registered the
cancellation deed though the original sale deed was not produced
before him. All such disputed questions cannot be examined in the
petition filed under Section 482 of Cr.P.C. as this Court cannot
conduct a mini trial while exercising jurisdiction under Section 482 of
Cr.P.C.
34) In view of my above discussion, the criminal petition is liable
to be dismissed.
35) Accordingly, the criminal petition is dismissed. However, it is
open for the petitioner to raise the question of applicability of
Section 197 of Cr.P.C. at appropriate stage during the course of
trial. The expressions made in this order by this Court are only
limited to the extent of deciding this quash petition.
36) The miscellaneous petitions pending, if any, shall also stand
closed.
________________________
JUSTICE V.SUJATHA
02.09.2024
Ksp
