HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR (1) S.B. Criminal Miscellaneous (Petition) No. 2666/2013 [ENTITY], son of Shri Bhagwana Ram Ji, aged 49 years, Village and Post Bharu Via-Nua, District, Jhunjhunu (Raj.) currently posted as Assistant Secretary, Disaster Management & Relief Department, Government of Rajasthan, Jaipur (Raj.) Petitioner Versus The [ENTITY] Through P P Respondent
Connected With (2) S.B. Criminal Miscellaneous (Petition) No. 1622/2009 [ENTITY] son of Dharma Nath Prasad Gupta aged about 41 years, R/o 36-37, Ashok Vihar Colony, Jhotwra, Jaipur, Jaipur Rajasthan
Petitioner Versus [ENTITY] Through P.P.
Respondent (3) [ENTITY] [ENTITY] son of [ENTITY], aged about 33 years, R/o E-120, Shastri Nagar, Jaipur (Rajasthan)
Petitioner Versus [ENTITY] Through P.P.
Respondent For Petitioner(s) : Mr. [ENTITY] For Respondent(s) : Mr. [ENTITY], AAG with Ms. [ENTITY], PP.
HON'BLE MR. JUSTICE [ENTITY] Judgment reserved on 10th April 2018 Judgment pronounced on 9th May 2018 Judgment
These are three clubbed S.B. Criminal Misc. Petitions preferred respectively by petitioner/s [ENTITY], Brij (2 of 11) [[CASE NUMBER]] [ENTITY] and [ENTITY] with a prayer to quash FIR No.179/2009 dated 21.07.2009 registered for the offence punishable under [SECTION] of the [ACT] read with [SECTION] and [SECTION] of [ACT] with Police Station Anti Corruption Department, Jaipur Rajasthan.
Petitioner/s have questioned and assailed validity of FIR No.179/2009 with contentions that property in question was a heritage/protected government property notwithstanding accused [ENTITY] acting contrary to law and to cause harm to the complainant State, being Sub-Registrar, Amer, in collusion with vendors and vendees and others, registered a deed of conveyance on 14.02.2007 vide conveyance deed No.2007064000721. [ENTITY], Director of archaeological Department under criminal league with Sub-Registrar [ENTITY] helped alienate government heritage property through Bhattacharya family favouring M/s Heritage City Construction Private Limited, Sanganer through authorized signatory/vendee [ENTITY] and [ENTITY].
It evinces from perusal of FIR impugned, 179/2009 dated 21.07.2009 that on the basis of News inserted in Jaipur's Newspaper of January 2008, a "primary enquiry" No.30/2009 was registered in respect of News item, which was carried out by Shri [ENTITY], Inspector of Police ACD, Jaipur and the Enquiry Officer, after conducting "preliminary enquiry", prima facie found commission of offence punishable under Section 13(1)(c)(d)
(ii) of the [ACT] read with [SECTION] and [SECTION] of [ACT] and submitted for lodging of FIR to SHO Police Station ACD, Jaipur, as such impugned FIR No.179/2009 came into being (3 of 11) [[CASE NUMBER]] and it was entered in general diary vide report () No.587 at 10:00 AM.
Heard submissions of rival sides, learned counsel for the petitioners has argued that the allegations recited in the FIR are false since petitioner [ENTITY], who registered document in the capacity of Sub-Registrar, Amer, did not violate law because [SECTION] of [ACT] having been declared ultra vires, by Hon'ble Supreme Court by dint of [ENTITY]'s case [State of Rajasthan v. [ENTITY] AIR 2005 SC 3401], there was no occasion to enter into quest to ascertain the title of transferers and this being the position, Sub-Registrar was not required to go into the issue of ascertaining actual title of transferer.
Learned counsel while inviting attention of the court towards a non-starred Vidhan Sabha Query No.6456 has contended that similar was the position, which was replied by Government to the House that it was not required by Sub- Registrar, it has further been contended that FIR impugned was hit by [SECTION] of [ACT] since it has been lodged after an enquiry, which is disclosed by the FIR itself that application of mind was executed and made by an authority to the rank of Superintendent of Police, Anti Corruption Bureau, hence is not sustainable under the eye of law and learned counsel has placed reliance on following authorities :-
(i) [PRECEDENT] (1996) 9 SCC 1
(ii) [PRECEDENT]
(iii) State of Rajasthan & Others v. [ENTITY] (supra)
(iv) [PRECEDENT]
(v) [PRECEDENT]
(vi) Mohammed Ibrahim And Ors v. State of Bihar And Anr.
(2009) 8 SCC 751 (4 of 11) [[CASE NUMBER]]
(vii) [PRECEDENT]. (2013) 11 SCC 130
(viii) [PRECEDENT] And Ors (2014) 2 SCC 1
(ix) [ENTITY] v. District Inspector of Police, State of Andhra Pradesh And Anr.
(2015) 10 SCC 152
(x) [PRECEDENT] decided on 9.12.2010 by Division Bench of Calcutta High Court]
(xi) [PRECEDENT], decided on 6.1.2016 by Rajasthan High Court]
(xii) [PRECEDENT] decided on 4.1.2018 by Rajasthan High Court] Besides it, main thrust of the argument is that a Departmental Enquiry was also conducted against accused-
petitioner Sub-Registrar [ENTITY], and he has already been exonerated by the Enquiry Officer since has not been found guilty of alleged misdeed and on the same set of evidence, criminal proceedings cannot be initiated against the petitioner/s, since it is nothing less than to abuse of process.
It has further been contended that nothing is there to establish that misuse of Office was ever endeavoured or deception was played, no iota of evidence is available on record to show that any alleged demand for gratification was made, so offence under the [ACT] and cheating, does not constitute. furthermore, recording of name of State in the revenue record does not confer any right to the State, provisions of the [ACT] does not postulate that property under prescribed zone to remain unalienated but it intends that property is to be kept in protected shape and there being no clog on conveyance. Drawing attention of the court towards several conveyance deeds, copies of which are available on the record, it has been contended that several transfers have already taken place regularly in the said heritage (5 of 11) [[CASE NUMBER]] and protected property zone but no FIR or any criminal action has ever been launched against those conveyance deeds, even second part of questioned property, which has been conveyed by a separate document on 20.04.2007 by [ENTITY] to the same vendee M/s Heritage City Construction Private Limited, Sanganer through its another authorized vendee [ENTITY] has been left scot-free and no FIR has been lodged even against transfer of subsequent and second part of the similar property, suggesting that petitioner/s have falsely been implicated out of vendetta in exclusion to other similar documents of alienation. Once Government has found no guilt of accused person, while conducting Departmental Enquiry, then how same employee could be held liable for alleged commission or omission of crime, had there been any substance in the allegations, then Sub-Registrar [ENTITY] would have certainly been held guilty by Departmental Enquiry Officer, in these circumstances, filing of alleged FIR is nothing less than to abuse of process of law and if further proceeded with, shall invariably collapse, hence the FIR impugned deserves to be quashed after allowing the petition/s.
Per contra, learned Additional Advocate General has contended and argued that sufficient material is available on the record against the petitioners and FIR contains serious allegations, so there is no reason to quash the same but learned Public Prosecutor has not controverted and has rather yielded with the factum of exoneration of the petitioner Sub-Registrar [ENTITY] by Enquiry Officer and when queried as to how a negative Enquiry Report was there in exonerating the petitioner, learned (6 of 11) [[CASE NUMBER]] Additional Advocate General has not been able to satisfy the court with the conclusion thereto and has conceded that Sub-Registrar [ENTITY] has been exonerated by the Enquiry Officer.
Heard submissions of both the sides and gave a considered look to the material available on the record.
It emanates from the contents of FIR that a News item had appeared in Dainik Bhaskar daily in the month of January 2008 in respect of alienation of haveli-property, so to ascertain truth a preliminary quest was made as Preliminary Enquiry No.30/2009, in furtherance, Enquiry Officer made a Preliminary Enquiry after going through the deed of conveyance and after verifying alleged misdeed and fact scenario and prima facie having been satisfied, lodged FIR with Anti Corruption Bureau, Jaipur being FIR No.179/2009.
Supreme Court in [PRECEDENT] (supra) has held that:-
"However, where information received does not disclose a cognizable offence a preliminary inquiry may be conducted to ascertain whether cognizable offence is disclosed or not - Also, matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay/laches in initiating criminal prosecution are illustrations and not exhaustive of all cases which may warrant preliminary inquiry"
obviously, the Preliminary Enquiry was to be held against deed of conveyance relating to bygone period of more than two years, wherein allegations of malpractices and corruptions were suspected and apprehension thereof appeared in the News item, which is evident from the text of the FIR so, a Preliminary Enquiry was conducted for verification of prima facie (7 of 11) [[CASE NUMBER]] case, cognizable in nature and same was the intent of said Preliminary Enquiry, thus, contention of learned counsel that investigation was a replica of enquiry and was hit by the provisions of [SECTION] of [ACT], bears no force.
It is indisputable that a Departmental Enquiry was conducted against Sub-Registrar [ENTITY] in respect of alleged illegality, so a Committee was constituted by Divisional Commissioner, Jaipur, and after obtaining explanation of delinquent employee, proceedings were dropped and were later approved vide Noting Nos.222/N, 223/N and 224/N, this aspect has also been reiterated by Inspector, Anti Corruption Bureau, Jaipur Rural, Jaipur, vide its communication/factual report No.457 dated 09.04.2018 that Sub-Registrar Shri [ENTITY] has been exonerated by Departmental enquiry pertaining to FIR No.179/2009.
[SECTION] of [ACT] has already been declared ultra vires by Apex Court in [ENTITY]'s Case (supra) resulting Notification/s relating thereto rescinded, this aspect is also not in dispute, so there was no reason to enter into the quest to ascertain title of vendor and such was the situation, which was reiterated by State while dealing with the Assembly query No.6456.
In State of Rajasthan & Others v. [ENTITY] (supra), Supreme Court has held that [SECTION] of the [ACT] being subordinate legislation cannot control the transactions which fall out of the scope thereof and has held [SECTION] unconstitutional and consequently the notifications issued thereunder also liable to be quashed.
(8 of 11) [[CASE NUMBER]] Admittedly no action has been taken or was proposed against Sub-Registrar, who registered second part of conveyance of the same property to the same vendee through Attorney [ENTITY], which was registered on 20.04.2007, whereas FIR impugned has been lodged in respect of first part of conveyance of same property dated 14.02.2007 belatedly with a gross delay of more than two years on 21.07.2009 without any satisfactory explanation.
It also emerges from the record that several conveyance deeds have been made prior and after impugned conveyance, copies of which are available on the record, but no FIR has been lodged against the vendor and vendees of the said sale deeds of same locality having same nature of the properties situated in proximity since no such material is available on the record.
Tax Demand notices have also been issued to various property holders under the provisions of [SECTION] [ACT] by Executive Officer, Notified Area Committee, Amer and same are issued also in the name of [ENTITY], substantiating factum of property being held in the name of transferer/s. Annexure-G description of buildings situated in buffer zone of Amer Kasba, does also reveal that according to City Survey of 1946-47, private buildings were existing in buffer zone apart from government buildings, temples, mosques and open land and individuals holding possession thereon.
Communications prior to registration of the conveyance deed between Sub-Registrar and Archaeological Department, are also vital since Annexure-C sent by Director, Archaeological (9 of 11) [[CASE NUMBER]] Department is a letter sent to Sub-Registrar, Amer vide letter No.1285 dated 13.02.2007 informing that questioned haveli was situated within the Controlled Area and the Controlled Area was having government as well as private owned properties and it was opined that on the basis of City Survey of 1946 said property probably was not a government property and further suggested to proceed for the registration accordingly.
Doctrine of law postulates that nobody can transfer a better title and whatever inherent deficiencies or defects are there with the vendor, would invariably pass to vendee, apart from it, recourse to sue for cancellation of unacceptable sale-deed always exists inherently with an aggrieved party.
Lodging of FIR after a lapse of more than two years from the date of registration of the impugned conveyance deed, more so against Sub-Registrar and vendees of first part of the property registered on 14.02.2007 and extending immunity to second part of its transfer to the same vendee and another Sub- Registrar, who verified the deed dated 20.04.2007 and non- registration of any FIR pertaining to the same vicinity properties and conveyance document verifying Sub-Registrar, vendor and vendees, are suggestive that discriminatory modus tantamounting abuse of process has been mooted by the prosecution. Moreso, when accused petitioner [ENTITY] was exonerated by Departmental enquiry officer, so its nothing less than to gross abuse of process. Vital ingredients of "Deception", "Demand of bribe" or conveyancing property "without consideration", also lacks. It is also an admitted position that the impugned property/ies have also not been acquired by the Government.
(10 of 11) [[CASE NUMBER]] In [PRECEDENT] (supra), Apex Court has held that there being no substantive evidence to prove factum of demand, which being essential ingredient for offence under [SECTION] [SECTION] of the [ACT] - accused liable to be acquitted.
This view has further been reiterated by Apex Court in [ENTITY]'s case (supra), This court through a co-ordinate Bench had earlier stayed further investigation in FIR No.179/2009 on 21.08.2009, while hearing [CASE NUMBER].
The Supreme Court in [PRECEDENT] (supra) has held that exoneration in departmental proceedings shatters the criminal prosecution and it has been observed:-
"At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings."
Likewise in [PRECEDENT] (supra), in a case pertaining to exoneration in departmental proceedings, the Supreme Court has quashed the FIR. A co-ordinate Bench of this court in Damodar Sharma v.
State of Rajasthan & Others (supra) has quashed FIR taking view of the exoneration of accused in departmental enquiry.
Upon, evaluating and considering entire material available on the record and to deter continuity of abuse of (11 of 11) [[CASE NUMBER]] process, it appears just and reasonable to quash FIR No.179/2009 in aforesaid fact scenario.
In the result, FIR No.179/2009 registered with Police Station Anti Corruption Bureau, Jaipur, District Jaipur, for the offences, punishable under [SECTION] of the [ACT] read with [SECTION] and [SECTION] of [ACT] and proceedings in furtherance thereto, are quashed and set aside.
All the three clubbed S.B. Criminal Misc. Petitions are disposed of in aforesaid terms.
([ENTITY] db/ashwani/1to3