Orissa High Court
Simanchalo Patro vs State Of Odisha And Another on 1 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1881 of 2022
Simanchalo Patro .... Petitioner
Ms. Deepali Mohapatra, Advocate
-Versus-
State of Odisha and Another .... Opposite Parties
Mr. S.S. Mohapatra, ASC
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:01.05.2023
1.
Instant writ petition under Section 482 Cr.P.C. is filed by the
petitioner for quashing of the order of cognizance dated 2nd July,
2022 under Annexure-4 passed in G.R. Case No.1458 of 2021
corresponding to B. Town P.S. Case No.169 of 2021 dated 25th
June, 2021 registered under Sections 120-B, 419, 420, 465, 467,
468, 471 read with 34 IPC pending in the file of learned S.D.J.M.,
Berhampur on the grounds inter alia that the same is bad in law
and hence, liable to be quashed in the interest of justice.
2. An FIR was lodged by opposite party No.2, namely,
informant with the allegation that the property situate over Khata
No.1842/2295 measuring Ac.0.0743 dec. was purchased by her in
2016 and thereafter, the ownership of the same was changed by
mutation but then later on learnt that the accused, namely,
Kishore Chandra Mishra by employing fraud managed to record
the land in question in his favour having been sold by her,
whereafter, on enquiry, it was revealed that such a fake sale
transaction to have taken place, consequent upon which,
mutation RoR was prepared. On receipt of such a report, B.
Simanchalo Patro Vrs. State of Odisha and Another
Town P.S. Case No.169 was registered and finally on completion
of investigation, chargesheet under the alleged offences was
submitted against the petitioner and two others. The petitioner
has challenged the impugned order of cognizance under
Annexure-4 passed by the learned court below later to the receipt
of the chargesheet in G.R. Case No.1458 of 2021 on the ground
that he was not involved in the illicit transaction except
responsible for the mutation vis-a-vis the schedule land.
3. Heard Ms. Mohapatra, learned counsel for the petitioner and
Mr. S.S. Mohapatra, learned ASC for the State-opposite parties.
4. Ms. Mohapatra, learned counsel for the petitioner submits that
the main accused has committed the fraud and forgery and
managed to obtain the RoR in respect of the case land vide
Mutation Case No.5220 of 2021. It is submitted that as per the
order of the Tahasildar, Konisi, the petitioner as RI, Haliapadar
submitted a report to him after holding a field enquiry and
approved the case for mutation, whereafter, the concerned
Tahasildar allowed the same by order dated 27th May, 2021.
While contending so, Ms. Mohapatra refers to copy of the order
in Mutation Case No.5220 of 2021 as at Annexure-5 series. It is
further submitted that after FIR was lodged by opposite party
No.2, the Tahasildar, Konisi cancelled the RoR in the name of
accused, namely, Kishore Chandra Mishra and prepared a new
RoR (Annexure-6) on 8th July, 2022 and as against the above
backdrop, when the petitioner was in no way connected to the
transaction in question nor he was named in the FIR nor any
specific allegation was made against him and furthermore when
he was involved in the mutation proceeding only, he could not
have been chargesheeted along with other accused persons, who
are primarily responsible for the fraud which was detected and
revealed during investigation. Apart from above, Ms. Mohapatra,
Simanchalo Patro Vrs. State of Odisha and Another
learned counsel for the petitioner submits that the petitioner is a
public servant and the alleged mischief, if at all was committed, it
was during and in course of discharging official duty and hence, in
order to prosecute him, sanction under Section 197 Cr.P.C. is
necessary, the fact which was lost sight of by the learned court
below and in support of such contention, a decision of the Apex
Courts in Indra Devi Vrs. State Rajasthan and Another decided in
Criminal Appeal No.593 of 2021 and disposed of on 23rd July,
2021 is placed reliance on. Hence, it is contended that the
petitioner since not involved in the alleged fraud, the impugned
order under Annexure-4 as against him is liable to be quashed in
the interest of justice.
5. Learned ASC for the State-opposite party No.1, on the other
hand, submits that since a fraud was perpetrated and it was
alleged to be by all the accused persons, who hatched a
conspiracy and managed to get the sale deed purported to have
been executed by opposite party No.2, the petitioner cannot be
exonerated on any such ground by claiming that he was merely
involved in the mutation proceeding. In other words, according
to Mr. Mohapatra, learned ASC, the investigation by the local
police revealed that when the petitioner and two other accused
persons are held to be responsible for the fraud and accordingly,
chargesheeted, the learned court below did not commit any
wrong or error in taking cognizance of the offences under
Annexure-4.
6. Gone through a copy of the chargesheet i.e. Annexure-4. The
informant, namely, opposite party No.2 is the owner of the case
land which she purchased in the year 2016. It is made to appear
that opposite party No.2 detected the alleged fraud when the
case land came to be recorded in the name of the accused,
namely, Kishore Chandra Mishra, the fact which was brought to
Simanchalo Patro Vrs. State of Odisha and Another
the notice of the Collector, Ganjam and other authorities
including the Tahasildar, Konisi. It has been alleged by opposite
party No.2 that someone committed fraud and managed to show
the sale of the land allegedly by her. Since fraud was detected, the
matter was reported to the local PS. As earlier mentioned, on
completion of investigation, the chargesheet was filed against the
petitioner being the concerned RI who was accountable for
scrutiny and verification. It is contended by Ms. Mohapatra,
learned counsel for the petitioner that the petitioner being the RI
cannot be held responsible for the alleged fraud which was
perpetuated by the other accused persons, since as per the
chargesheet, the petitioner was found to be negligent in
scrutinizing the documents like the Tahasildar while finalizing the
mutation in favour of one of the accused person. It is stated that
the petitioner since was a part of the mutation proceeding, he
could not have been roped in by the local police as the alleged
fraud was committed by other accused persons. Furthermore, it is
contended that the petitioner at the relevant point of time being
a public servant, any such criminal prosecution should have been
preceded by a sanction under Section 197 Cr.P.C. It is submitted
that neither direct involvement of the petitioner is proved and
established nor any sanction under Section 197 Cr.P.C was
obtained for his prosecution which the learned court below ought
to have insisted upon in view of decision of the Apex Court in
Indra Devi (supra). Mr. Mohapatra, learned ASC submits that it is
an act of fraud and therefore, the learned court below rightly
proceeded against the petitioner taking cognizance of the alleged
offences despite the fact that he is a Govt. servant since as per the
chargesheet involvement of all three have been alleged.
7. The concerned Tahasildar is not an accused and he has been let
off. The chargesheet as at Annexure-3 indicates that the other two
Simanchalo Patro Vrs. State of Odisha and Another
accused persons did play the role in the execution of the sale
deed, whereas, the Tahasildar, Konisi failed to scrutinize the
documents and the petitioner, an RI did not hold a proper
enquiry leading to the finalization of the mutation. It is further
revealed that the RoR in respect of the schedule land was shown
in the name of the original owner in the Govt. website when the
mutation proceeding was initiated but neither the petitioner nor
the Tahasildar concerned securitized the documents as a result of
which mutation RoR was prepared in the name of accused
purchaser, who thereafter, transferred it to other accused, namely,
Sujit Kumar Padhi. It has been alleged in the chargesheet that
during the investigation, the involvement of the petitioner with
the criminal conspiracy hatched by the other two accused persons,
the mutation case was initiated and it was finalized in favour of
accused, namely, Kishore Chandra Mishra.
8. Question is, whether, the petitioner was in any way responsible
or directly involved in the alleged fraud? Furthermore, whether
the petitioner before being criminal prosecuted, whether sanction
under Section 197 Cr.P.C. to be necessary? In Indra Devi (supra),
the Apex Court considered the need for sanction under Section
197 Cr.P.C. and observed that immunity under law is to protect
an officer from unnecessary harassment, who is accused of an
offence committed while acting and purporting to act in due
discharge of official duty and thus, prohibits the court from taking
cognizance of the offences against him except with prior sanction
of the competent authority. It is held therein that public servant
has been treated as a special category in order to protect them
from malicious or vicious prosecution but at the same time, not
being used as a seal to protect corrupt officers and hence, the
provision must be construed in such a manner as to advance the
cause of justice. A decision in Subramanian Swamy Vrs. Dr.
Simanchalo Patro Vrs. State of Odisha and Another
Manmohan Singh & Another (Civil Appeal No.1193 of 2012) has
been referred to by the Apex Court in Indra Devi (supra) and
further observed that cheating, fabrication of record or
misappropriation, though cannot be said to be a part of official
duty, however, sanction is necessary, if the offence alleged against
the public servant is committed by him while acting or purporting
to act in the discharge of his official duty in order to find out as to
whether the alleged offences committed while acting or
purporting to act in the discharge of his official duty and the
yardstick to be followed is to form a prima facie view whether
the act or omission for which the accused was charged has a
reasonable connection with the discharge of his duty. One of its
earlier decisions in State of Maharashtra Vrs. Dr. Budhikota
Subbarao (Criminal Appeal No.276 of 1993) has also been
referred to and discussed therein.
9. In the instant case, the Tahasildar though was found negligent
but he has not been arrayed as an accused. The petitioner was
involved in mutation proceeding as he was to submit an enquiry
report. The allegation is that the sale was shown as if it was by
the complainant and then mutation RoR was obtained. Nothing is
on record to show any kind of direct involvement of the
petitioner vis-a-vis the forged transaction. The petitioner as the RI
was to hold an enquiry on the direction of the Tahasildar and to
submit a report which he did. The allegation is that there was no
proper enquiry by the petitioner and on his report, the mutation
was finalized. The allegation is as if the petitioner knew about the
fake transaction of sale and in connivance with other accused
persons ensured mutation. At the same time, it is made to suggest
that the petitioner to be grossly negligent in holding enquiry
which resulted in the finalization of mutation. Unless connivance
is prima facie established with evidence on record, it would not
Simanchalo Patro Vrs. State of Odisha and Another
be justified to allege the petitioner as a party to the fake
transaction. Merely for failing to conduct proper enquiry during
mutation proceeding, the petitioner cannot be dragged in and
subjected to prosecution without any clear proof of involvement
with other accused persons. The Court does not find any
convincing evidence worthy enough to show any direct or
indirect involvement of the petitioner except revealing his serious
negligence leading to the finalization of mutation. If fraud is
prima facie established, it may be said that sanction to be
unnecessary but where there is lack of direct or indirect evidence
about involvement rather a case of negligence in holding proper
enquiry during mutation proceeding is apparently suggested, the
petitioner being a Govt. servant, the learned court below ought
not to have taken cognizance of the offences against him without
insisting upon sanction under Section 197 Cr.P.C. since a
prosecution should not be allowed to continue and thrive on the
foundation of suspicion unless it received approval of the
competent authority morefully when he acted in discharge of
official duty and it may even be confined to the mutation
proceeding.
10. Accordingly, it is ordered.
11. In the result, CRLMC stands allowed to the extent as aforesaid.
As a logical sequitur, the impugned order of cognizance under
Annexure-4 passed in G.R. Case No.1458 of 2021 corresponding
to B. Town P.S. Case No.169 of 2021 is hereby quashed vis-à-vis
the petitioner leaving it open for the learned S.D.J.M., Berhampur
to proceed against him subject to receipt of sanction in terms of
Section 197 Cr.P.C.
(R.K. Pattanaik)
Judge TUDU
THAKURDAS Digitally signed by THAKURDAS
TUDU
TUDU Date: 2023.05.03 12:02:49 +05'30'
