Shahshi Bhushan Singh vs The Union Of India Through
2023 Latest Caselaw 1468 Jhar

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
           Cr. Revision No. 528 of 2020
Shahshi Bhushan Singh                   .... .. ... Petitioner(s)
                 With
           Cr. Revision No. 549 of 2020
Krishna Kanhaiya Rajhans                .... .. ... Petitioner(s)

                    Versus
The Union of India through
Central Bureau of Investigation CBI          .. ... ...Opp. Party(s)
                          ...........

CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........

For the Petitioner(s) : Mr. Ajit Kumar, Sr. Advocate Mr. Ravi Kumar Singh, Advocate Mr. Arun Kumar & Ms. N. Nidhi, Advocates [Cr. Rev.528 of 2020] Mr. A. K. Kashyap, Sr. Advocate Mr. Ravi Kumar Singh, Advocate Mr. Arun Kumar M/s A. Kumari, Advocates [Cr. Rev.549 of 2020] For the CBI : Mr. P.A.S. Pati, Sr. Spl.P.P.

...........

C.A.V. ON 29.03.2023 PRONOUNCED ON 05.04.2023

1. The aforesaid both Criminal Revision applications arise out of the same case and involve common issues and, therefore, they are heard together and will be disposed of by this common order.

2. The aforesaid both the Criminal Revision applications have been filed for setting aside the order dated 04.02.2020 passed by learned Special Judge, CBI, Ranchi in R.C.-18(S)/ 2013-R whereby and whereunder, the learned court has rejected the petition for discharge.

Cr. Revision No.528 of 2020

3. Petitioner (Shahshi Bhushan Singh) in Cr. Revision No. 528 of 2020 was posted as Revenue Karmchari (Halka Karmchari) in the year 2006-08 and was involved in processing of mutation cases of M/s Sanjeevani Housing Company Limited and recommended for mutation in its favour knowing fully well that the land was already recorded in the name of SAIL Employees Co-operative Housing Societies Limited (hereinafter referred to as "the cooperative society"). In conspiracy with M/s Sanjeevani Housing Company, he dishonestly opened separate pages in Register-II and made entries in respect of the aforesaid properties in the name of said Company and thereby falsified the records. He also dishonestly recommended the

excess mutation in Plot No.5059, Khata No.275 and also under Plot No.5052, Khata No.69 than the actual area of land.

4. Petitioner (Shahshi Bhushan Singh) did not inform the purchasers of the land that it was already mutated in the name of M/s SAIL Employee Co- operative Housing Society Limited.

Cr. Rev. No. 549 0f 2020

5. Petitioner (Krishna Kanhaiya Rajhans) was the Circle Officer, Ratu Circle, Ranchi during the period of 2006-07 and 2007-08 and he was the officer who illegally ordered for mutation in favour of M/s Sanjeevani Housing Company even though the said land belonged to the SAIL Employees Co-operative Housing Societies Limited and was entered in Register- II. He not only ordered double mutation under Khata No.123 Plot No.5060, Khata No.69 Plot Nos.5052 and 5066 and Khata No.275 Plot No.5069, but also ordered excess mutation of land under Khata No.275 dishonestly and fraudulently.

6. Both the petitioners had earlier moved this Court for quashing of the order taking cognizance and the entire criminal proceeding which has been rejected by a detailed order passed in Cr. M.P. No.699 of 2015 and Cr. M. P. No.702 of 2015.

7. The revision petitions have been filed against the order of refusal of discharge and the subsequent order of framing of charge.

8. It is argued by Mr. A. K. Kashyap, learned Senior counsel for the petitioner [Krishna Kanhaiya Rajhans in Cr. Revision No.549 of 2020] that the impugned order is a non-speaking order as no reason has been given for rejection of discharge petition. It is submitted that the materials on the basis of which the prosecution is intended to be made has not been disclosed in the impugned order. The order was passed by this petitioner being the Circle Officer on the basis of recommendations made by the Halka Karmchari and the Circle Inspector and there is no material on record to show that he has made any pecuniary gain by passing such order. Therefore, the offence under Section 13(1)(d) of the P.C. Act will not be made out. The document which had been allegedly forged has not been stated which is the fundamental ingredient to make out an offence of forgery.

9. It is argued that mutation does not create or extinguish title ,rather the mutation order is passed only to ascertain the persons from whom the land revenue is to be collected by the State. Circle officer while exercising a

mutation order exercises quasi-judicial function against which there are provisions of appeal, for which criminal prosecution cannot be launched. It is submitted that in the judgment reported in 2013(1) Eastern Cr. Cases 243 on almost similar facts the order taking cognizance has been quashed by this Court against the Circle Officer who had been arraigned as an accused under Sections 420, 423, 424 IPC and under Section 13(1)9d) read with Section 13(2) of the P.C. Act while passing a wrong mutation order.

10. It is argued by learned Senior counsel Sri Ajit Kumar for the petitioner (in Cr. Revision No.528 of 2020) that being halka Karmchari he had no authority to order for mutation and he was only the recommending authority. There is no material to show that he derived any pecuniary advantage by alleged act of favourably recommending for mutation.

11. It is argued that the role of Karamchari is defined under Section 13 of The Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 which reads as under:-

13. Mukhiya, Circle Inspector or karamchari to report cases of partition of intestate or testamentary succession or acquisition by any other means to the Anchal Adhikari- A mukhiya, a Circle Inspector or a karamchari shall obtain information of cases of partition, intestate or testamentary succession or acquisition or interest by any other means in a holding or part thereof in course of his visits to the villages within his jurisdiction and shall forthwith furnish the same to the Anchal Adhikari in the prescribed form.

12. In the light of above provision, this petitioner (Halka Karamchari) was duty bound to report the matter of transfer and it was for the Circle Officer to pass appropriate order after considering all relevant paper under Section 14 (1) which inter alia included the report under Sections 11, 12 & 13.

13. Lastly, it is submitted on his behalf that he has been exonerated of the charge in the Departmental proceeding, copy of which has been annexed as Annexure-9 (the order passed by Deputy Commissioner cum District Magistrate, Ranchi dated 24.11.2015. In view of the exoneration in the Departmental proceeding, the petitioner is not liable to be charged for the offence as alleged in view of the ratio decided in the following cases:

"P.S. Rajya Versus State of Bihar; (1996) 9 SCC 1 wherein prosecution under Section 5(2), 5(1)(e) of the Prevention of Corruption Act, 1947 was quashed.

Ashoo Surendranath Tewari v. CBI, (2020) 9 SCC 636 :

8. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a

criminal proceeding where the case has to be proved beyond reasonable doubt.

Musstt Rehana Begum Versus State of Assam & Another; 2022 SCC OnLine SC 82--In this case Supreme Court quashed a criminal prosecution under Sections 494 and 495 of the IPC."

14. Learned Sr. Spl. P.P. for the CBI has opposed the prayer. It is submitted that the grounds which have been taken in the instant Criminal Revision applications, had already been pressed into service by the petitioners in the quashing petition before this Court, as such, the same has attained its finality. Learned counsel on behalf of CBI relied on :

Sitaram Choubey & Others Versus The State of Bihar & Others; 1993 SCC OnLine Pat 88 Jagjit Singh Versus Divisional Commissioner, Patiala & Others 2012 SCC OnLine P&H 13153.

15. Petitioners are circle officer and Halka Karamchari and the main allegation against them is that they in collusion with the land developer company, had mutated the name which belonged to the public sector undertaking of SAIL cooperative society.

16. FIR being Jaganathpur PS Case No. 169/12 was registered based on the written report of police inspector Jaganathpur, Ranchi on 01.06.2012 against M/s Sanjivani Buildcon (P) Ltd. The investigation in this case was taken over by CBI in pursuant to the request of the state government. After investigation chargesheet had been submitted, and the order taking cognizance was challenged before this Court, which has been rejected by a detailed order by the Coordinate Bench.

17. There is merit in the submission made on behalf of the CBI, that grounds taken in the instant revision petition is substantially the same and has been answered in the criminal miscellaneous petition earlier negatived by this Court.

18. The provision of discharge is laid down as under:

Section 239-- When accused shall be discharged-- If, upon considering the police report and document sent with it under Section 173 and making such examination if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reason for so doing.

From the above provision of discharge, it is manifest that if there is no ground for presuming that the accused has committed an offence, the charge

must be considered to be groundless. At the time of framing of charge, the trial court is required to consider only the police report. No detailed evaluation of the materials or meticulous consideration of the possible defence need to be undertaken at this stage. The test for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted make out no case whatsoever. Where material on record discloses offence, accused cannot be discharged.

19. There are two main grounds specifically pressed on behalf of petitioner. First, Shahshi Bhushan Singh was then halka Kramchari and his role was confined to make recommendations for mutation. He was duty bound to recommend in view of the rule cited on his behalf. The second plea is the exoneration in the departmental proceeding.

20. It shall be desirable to refer to certain materials that has come in the chargesheet and considered in Cr.M.P No.699 of 2015 filed by this petitioner, while dismissing the criminal miscellaneous petition. One Gansu Mahto had sold 72 decimals of land under plot no.5059 khata no.275 to the SAIL cooperative society in the year 1999 which was duly mutated in the name of the cooperative society. The very same person Gansu Mahto in the year 2007 sells 101 decimals of land to M/s Sanjeevani Housing Company and the same is recommended and mutated. There were other such sale transactions for which mutations were recommended by this petitioner (halka Karmachari) and final order passed by the other petitioner (Circle Officer).

21. Every public office is a trust and any statutory duty whether of recommendation or passing a final order is to be discharged with a degree of responsibility. One cannot get away with plea that the statute invested in him the power of only recommending. Quite ironically the halka karamchari pleads that he could only recommend, whereas the circle officer takes the plea that he had acted on the recommendations of the halka karamchari and the circle inspector. Thus both the public servant abnegates their personal liability for the official act discharged by them. In this way, huge chunks of land were mutated in the name of private housing company without any supporting document.

22. It has been argued that there were surplus lands available in the same plot, apart from the land of SAIL, regarding which the mutation order has been passed, and therefore the allegation of double mutation of the same plot

was unfounded. This is a question which pertains to contentious issue of facts which cannot be considered while hearing the revision petition and the petitioner will be at liberty to take this in defence at the trial stage.

23. Now coming to the plea of exoneration and discharge on the ground that petitioner Shahshi Bhushan Singh has been exonerated of the charges in the departmental proceeding. It is to be noted that facts of the present case are different from the authorities relied upon.

24. There is no inflexible rule of law that exoneration in a departmental proceeding shall ipso facto lead to discharge in a criminal case. The quashing in the cases relied upon were based on different fact situations and there were other factors, apart from exoneration in departmental proceeding, which tilted the scale allowing the petition of quashing. To hold otherwise will be against the very principle of stare decisis applicable in criminal law. Even a judgment rendered by a Civil Court is not binding on the Criminal Court and vice-versa as held in Kishan Singh VS Gurpal Singh, (2010) 8 SCC 775. Further, even the Departmental Proceeding was not decided on merit, but because certain documents like the record of right was not produced by the presenting officer.

Further plea has already been answered in the Criminal Miscellaneous Petition decided by the Coordinate Bench of this Court.

This Court is of the view that there is no infirmity in the impugned order to warrant interference by this Court.

Both the Criminal Revision petitions are dismissed. Pending Interlocutory Applications, if any, stand disposed of.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated 05th April, 2023 AFR/Sandeep/Anit