(1.) These two applications (Cr. Revision No. 373 of 2003 and Cr.Revision No. 481 of 2003) under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter to be referred as 'Code') are directed against the part of the order dated 29-3-2003 passed in T.R. No. 1299 of 2002 in Cr. Revision No. 373 of 2003 and T.R. No. 840 of 2003 in Cr. Revision No. 481 of 2001, both arising out of Giridih (T) P.S. Case No. 111 of 2000 dated 1-6-2000 and in both the applications, same question of law and facts are involved, hence they are being disposed of by common order.
(2.) Facts briefly stated are that the O.P. No. 2 complainant filed a complaint case in the Court of Chief Judicial Magistrate, Giridih and the complaint case was sent to the P.S. concerned under Section 156(3) of the Code for institution and investigation of the case and on the basis of which, police registered a case being Giridih (T) P.S., Case No. 111 of 2000 under Sections 406/408/ 409/466/468/477/120 B of the Indian Penal Code against the petitioner and others. The fact which emerged from the complaint case is that O.P. No. 2 Bhuneshwar Yadav had purchased 1.16 acres of land of Khata No. 73, Plot No. 294, 295, 296, 301 and 314 from one Daud All and others by registered sale deed No. 4524/4498 dated 15-4-1991 registered at District Registration Office, Giridih and received the sale deed on 16-3-1996. It was further alleged that after receiving the sale deed, he had made application for mutation but mutation was kept pending on the ground that recital of last two lines of third page of the sale deed measuring 0.16 decimals has been penned through. It is further alleged that the complainant suspected that the aforesaid mischief was committed under the conspiracy hatched up by Rameshwar Das and Shankar Das, the two class-IV employees working in the Registration office, Giridih because he is facing litigation of land with them. The complainant had levelled allegation against several persons including this petitioner. After submission of charge sheet, cognizance in the case was taken by the learned Chief Judicial Magistrate, Glridih under Sections 406/408/409/466/467/468/477/120 B of the Indian Penal Code vide order dated 4-10-2002.
(3.) Learned counsel for the petitioner of Cr. Revision No. 373 of 2003 has submitted that the petitioner was working as a Registrar and, therefore, he was entitled to protection under Section 197 of the Code and no cognizance should have been taken without sanction from the competent authority. It was further pointed out that he functioned as a District Sub-Registrar, Giridih from 12-1-1990 to 7-8-1992. It was further pointed out that the entire materials were collected during the investigation by the investigating officer and there is no direct or indirect evidence for even suspicion against the petitioner for commission of the alleged offences. II. was further pointed out that the petitioner had no enmity with complainant-O.P. No. 2 or complainant - O.P. No. 2 had no enmity with the petitioner and, therefore, there was no occasion for this petitioner to commit forgery as alleged in the F.I.R. It was further submitted that contention of the O.P. No. 2 that he filed a petition for mutation of his name in the serista is not correct because when complaintant - O.P. No. 2 was directed to file case No. of the mutation case, then submission was made that he has not yet filed any mutation case, and after filing of this case, mutation petition has been filed. It was further submitted that from the complaint petition, it will appear that though registration of the document was done on 5-4-1991 but complainant received the sale deed on 16-3-1996, but this petitioner worked from 12-1-1990 to 7-8-1992 only and this forgery came to knowledge in the year 1996 and, therefore, it cannot be said that during the functioning of this petitioner this forgery has been committed. It. was also submitted that a petition under Section 239 of the Code was filed for discharge of the petitioner which was rejected.
(4.) Learned counsel for the petitioner of Cr. Revision No. 481 of 2003 has submitted that the petitioner had Joined at Glridih on 7-8-1992 but the document in question was presented on 15-4-1991 and at that time, he was not posted there. It was further pointed out that complainant - O.P. No. 2 for the first time came to know about the penning through of two lines of last para of page-3 when he filed a petition before Circle Officer for mutation of his name and from there, he came to know that mutation could not be done on account of cutting or penning through of two lines of third page. But from the counter-affidavit filed on behalf of the O.P. No. 2, it appears that after filing of this case, complainant- O.P. No. 2 has filed a petition for mutation of his name and, therefore, it cannot be said that where this alleged forgery has been committed because there was no occasion for complainant-O.P. No. 2 to falsify that mutation was refused; when in fact he had not filed any petition for mutation of the case by then.
(5.) On the other hand, learned counsel for the O.P. No.2- complainant submitted the last two lines of third page of sale deed have been deleted and mutation was rejected on the ground these two lines were deleted and this will be evident from the mutation case No. 8 of 2004-05 dated 20-5-2004. It was further pointed out that from perusal of the case diary, it will appear that Registrar happens to be custodian of the documents along with the one other person and one of the key remains in the custody of the Registrar and, therefore, any sort of forgery cannot be committed without the connivance of the Registrar.
(6.) In course of submission, learned counsel for the petitioner referred to AIR 2004 SC 2179 : (2004 Cri LJ 2011) wherein it has been held that so far as the public servants are concerned, cognizance of any offence by any Court is barred under Section 197 of the Code unless sanction is obtained from the appropriate authority, if offence as alleged has been committed, was in discharge of the official duty.
(7.) On the other hand, learned counsel for the O.P. No. 2 has submitted that the alleged offence is not covered in due discharge of the official duty and the petitioner will not be entitled to protection under section 197 of the Code. In this connection, reliance was placed upon 2000 (8) SCC 131 : (2000 Crl LJ 4041). Reliance was also placed upon 2002(6) SCC 543 : (2002 Cri LJ 3780), wherein it has been held that in certain cases depending upon the nature of case, complaint of a complainant cannot be quashed at the initial stage and question of sanction can be raised at any time after cog- nizance of offence is taken, may be at the time of conclusion of trial.
(8.) From the case-laws cited on behalf of the parties, it is clear that protection of section 197(1) of the Code will be available to the public servant when act complained of, falls under due discharge of official duty. But when the act complaint of does not fall within the meaning of official duty, then the public servant or Government servant will not be entitled to protection under section 197 of the Code. Here in the instant case, allegation is such that the allegation does not fall under the category of official duty and, therefore, protection under section 197 of the Code will not be available to the petitioner, but in the counter-affidavit, there is no denial that the petitioner worked from 12-1-1990 to 7-8-1992 and the document in question was registered on 15-4-1991 and the sale deed was obtained by the complainant O.P. No. 2 on 16-3-1996, four years after the petitioner had left the place and, therefore, it cannnot be said that this petitioner is the person responsible for commission of forgery or interpolation or cutting or penning through two lines because this petitioner has got no enmity with the complainant - O.P. No. 2 nor complainant - O.P. No. 2 has got any sort of enmity against the petitioner and no such allegation has been brought against petitioner by complainant - O.P. No. 2 that beside this sort of allegation, he has got some other allegation against the petitioner. In this connection, reliance was placed upon 2001(3) JLJR SC 913 and further reliance was placed upon 2001(1) JLJR SC 230 wherein it has been held that if upon admitted facts of the documents relied upon by the complainant without weighing or shifting evidence, no case is made out and then criminal proceeding is liable to be quashed. Here in the instant case,
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even if the petitioner is put on trial, then question will arise that he worked up to 7-8-1992 and documents in question was taken possession of by the complainant - O.P. No. 2 on 16-3-1996 and he did not see the forgery being committed from his own eyes. Similar is the position with respect to other petitioner of Cr. Rev. No. 481/2003, who also joined at Giridih on 7-8-1992 after this sale deed was executed on 15-4-1991 and, therefore, it cannot be said that this petitioner is also liable for the same or had any hand in commission of mischief. (9.) Therefore, in the facts and circum- 2005 Cri. L. J./193 VIII stances of the case, continuance of the case will be an abuse of the process of the court. In that view of the matter, both the applications are allowed and order dated 29-3-2003 passed in T.R. No. 1299 of 2002 and T.R. No. 840 of 2003 arising out of Giridih (T) P.S. Case No. 111 of 2000 is hereby set aside. Applications allowed.