Criminal Revision No.1547 of 2000 (O & M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: 11.11.2008. Natha Singh and others ....Petitioners Versus State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present:- Ms. Baljit Kaur Mann, Advocate for the petitioners. Mr. Mehar Deep Singh, AAG Punjab. ---- RANJIT SINGH, J. The petitioners, who are accused in an FIR No.4 dated 10.01.1995 under Sections 406, 120-B IPC were discharged by Additional Chief Judicial Magistrate, Kapurthala on 17.11.1995. The State filed a revision against the said order before Sessions Judge, Kapurthala, who set aside the order of discharge passed by the Magistrate. The petitioners were accordingly directed to appear before the trial Court and face prosecution. They have filed the present revision petition impugning the said order. While issuing notice of motion in this case, further proceedings in the trial Court were stayed and i.e. how the revision has now come up for hearing. The facts in brief are that Deputy Commissioner, Kapurthala wrote a letter dated 02.08.1994 saying that the land measuring 17 Kanal 18 Marla recorded as shamlat tarf Narangpur Hasab Rasad Khewat is recorded as Muafidar of Muafi Devi Dwara Criminal Revision No.1547 of 2000 (O & M) -2- Biataman. One Mulakh Raj was Mohtamim and had executed two lease deeds dated 17.07.1991 and 12.07.1991 in favour of different persons for a period of 99 years. In the lease deed dated 10.07.1991 land measuring 11 Kanal 19 Marla was given to Natha Singh son of Mohan Singh and the land measuring 5 Kanal 9 Marla was given on lease to Karam Singh son of Swaran Singh son of Munsha Singh. Alleging that no muafidar can sell, mortgage or lease out the muafi land in term of para 165 of the Land Administrative Manual, the lease deeds are termed as illegal. Since the lease deed has been registered by the then Niab Tehsildar Mohan singh, he is also accused of committing offence of irregularities in registering these lease deeds. Mulakh Raj muafidar is accused of misappropriating the muafi land. After seeking opinion of District Attorney, case under Sections 406, 408 IPC coupled with Section 120-B IPC was registered. The case was registered as a reference made by Deputy Commissioner, Kapurthala to SSP Kapurthala. SSP Kapurthala has written back to Deputy Commissioner through his letter dated 14.09.1994 saying that the allegation would make out a case of civil controversy only. The SSP was further of the opinion that Deputy Commissioner had all the rights to deal with the case and there was no proof of misappropriation of the amount of the sale deed pertaining to the property in question by Mulakh Raj petitioner. In response to this, the Deputy Commissioner again wrote back to SSP on 29.10.1994 that action was on to review the mutation sanctioned Criminal Revision No.1547 of 2000 (O & M) -3- earlier. He further pointed out that the Muafidar did not have any right to sell the Government land, therefore beside civil remedy, criminal offence was also made out. As per the Deputy Commissioner the lease money received by Mulakh Raj was obviously not spent on the Mandir and might have been kept for his personal use, which would require investigation. Even after receipt of this letter, the SSP Kapurthala wrote back to the Deputy Commissioner on 28.11.1994 pointing out that there was no proof against Mulakh Raj that he has misappropriated the lease amount and there was no allegation of an amount having been paid to Niab Tehsildar Mohan Singh. It was observed that Mohan Singh would not be liable for any act in the matter of leasing out the property in question. Subsequently, perhaps on insistence of Deputy Commissioner, SSP Kapurthala in consultation with District Attorney registered a case on 28.10.1994 with the allegation that lease deed pertaining to Government land and receipt of lease amount by Mulakh Raj would reveal an offence under Section 406 IPC against Mulakh Raj. During the investigation Mohan Singh, Niab Tehsildar, Natha Singh Karam Singh and Sudagar Singh were also accused of the commission of offence and therefore challan was presented against all these persons. Additional Chief Judicial Magistrate, Kapurthala at the time of framing the charge, found on the analysis that the complaint was made basically in terms of para No.165 of the Land Administrative Manual to make out criminal offence against Mulakh Raj. He referred to the contents of para No.165 which are as Criminal Revision No.1547 of 2000 (O & M) -4- under:- “It is scarcely necessary to remark that the Jagirdar of “mafidars” has no power of sale, mortgage, gift or sub-lease, of his revenue assignment, except under special circumstances which must be proved. Contracts of this kind will not be recognized by the Revenue Courts and the parties in possession on these pleas will be considered only the private agents of the holders with no legal rights.” He found that this para did not bar the sale gift or sub- lease of the property which is subject matter and under special circumstances, it could be done. He further noticed that no opportunity was given to Mulakh Raj to show the same. He accordingly found that entire controversy in the complaint is in fact dispute of civil nature as earlier been viewed by SSP Kapurthala. He accordingly did not find any prima facie case against the accused and discharged them for offences under Sections 406, 120-B IPC. Another fact of significance, which may need a notice is that the public prosecutor moved an application during the course of arguments for framing charge against the accused under Sections 406, 408, 420, 465, 467 and 468 IPC read with Section 120-B IPC. The Public Prosecutor was permitted to file this application when confronted with the position that case under Section 406, 34 IPC was barred by limitation. Finding no merit in this application, the Magistrate had dismissed the same. The Court rightly observed that the Public Prosecutor did not explain any reason in his application or could not show any material which was obtained to place on record Criminal Revision No.1547 of 2000 (O & M) -5- for framing the charges under these sections as referred to in the application. Otherwise, the offence under Section 406 IPC was barred by limitation as provided under Sections 468 and 469 Cr.P.C. Lease deeds admittedly were registered on 10.07.1991 and 12.07.1991 and criminal proceedings were initiated on 26.08.1994 that is against the expiry of period of more than three years. The Sessions Judge, however, differed with the view taken by the Trial Court and observed that para No.165 of the Land Administrative Manual provides that Jagirdar and Muafidar have no power to gift or sub-lease of his revenue assignment. He unfairly observed that Mulakh Raj if was not able to cultivate the land he could get the same land cultivated from others but could not have given the same on lease. The Sessions Judge rejected the plea of Niab Tehsildar that he was not aware of the provisions of Section 165 of Land Administrative Manual. The Court also rejected the arguments that sanction under Section 197 Cr.P.C. was required for prosecution of the Niab Tehsildar and went on to observe that from the facts of the case an offence under Section 408 IPC was also made out. Thus, the Court held that the plea of limitation is not attracted. The Court accordingly accepted the revision and set aside the impugned order passed by the trial Magistrate. During the pendency of the revision petition, the civil suit which was concerning the validity of the lease has also been decided. Counsel for the petitioner took time to place on record the judgments rendered in this case by the Trial Court as well by District Judge, Kapurthala. Vide separate order both the judgments have Criminal Revision No.1547 of 2000 (O & M) -6- been taken on record. The perusal of the judgment passed by District Judge would show that lease deed Ex.P1 and Ex.P3 which are subject matter of registering a case against the petitioner have been found to be legal and valid and for consideration. The observation made by the Collector in regard to these lease deeds has been held to be not binding nor having any validity on illegality of the said document and accordingly decreed the suit of the plaintiff in the said suit i.e. Natha Singh,Sudagar and Karam Singh in whose name these lease deeds were executed. Once the lease deeds have been held to be a valid documents by taking into consideration the contents of para No.165 of the Punjab Land Administrative Manual, it would be difficult to take in different views in regard to the said provision while prosecuting the petitioners. The finding of the Civil Court would be binding on the criminal court and there is no need to notice any precedents in this regard. The provisions of para No. 165 of the manual are already reproduced also. A fact, which, apparently has escaped notice of the courts is that there is no bar for Muafidar to lease the muafi land. The Jagirdar or Muafidar, as per this provision, would have no power to sale, mortgage, gift or sub-lease (emphasis supplied) of his revenue assignment. The bar as such is concerning sale, mortgage, gift and sub-lease. This bar is not for a lease. This seems to be with a purpose. If Muafidar or Jagirdar is not able to lease the land, it would be no use to him. In an event if he is not able to cultivate the same then the land would be of no use. That is why, there is no prohibition in regard to lease and bar is only in regard to sub-lease. Criminal Revision No.1547 of 2000 (O & M) -7- There is also no complete prohibition in regard to sale, mortgage, gift or sub-lease of such land. The exception is created in said para itself. It provides that under special circumstances and which are required to be proved, the sale, mortgage, gift or sub-lease could also be done. Once there is no total prohibition in the statute, it is not possible to say that lease or sub-lease or sale etc. of such a land would be totally impermissible. This provision cannot be read as prohibitory in nature. The correspondence that has been exchanged between the Deputy Commissioner and SSP would also be relevant. It has time and again been emphasized by the police that no criminal offence in this case is made out. This case has been registered on the insistence of the Deputy Commissioner and on the opinion of Public Prosecutor that the offence of criminal breach of trust would be revealed. I have not been able to appreciate as to how the offence under Section 406 IPC would be made out against the beneficiaries. Criminal breach of trust is defined under Section 405 IPC, as whosoever entrusted with the property or having dominion of the property dishonestly misappropriate or converts to its own use the property or disposes of that in violation of any terms of law prescribing the mode in which such trust is to be discharged etc. will be guilty of committing criminal breach of trust. Giving the land on lease even in terms of para No. 165 of Punjab Land Administrative Manual cannot lead to allegation of misappropriation or conversion of the property to its own use. Dishonestly using or disposing of the property in violation of direction prescribed by law would also not be Criminal Revision No.1547 of 2000 (O & M) -8- attracted in this case as para No.165 does not apparently bar the giving of land on lease. It is also not understood as to how the Sessions Judge has come to the conclusion that offence under Section 408 IPC of criminal breach of trust against Mulakh Raj would be made out. He cannot be termed as a clerk or servant or employee, who was entrusted in such capacity with the property. In fact, the trust is for Mandir and Mulakh Raj was Mohtamim. He could not termed as a clerk or servent. Even after investigation no evidence has been collected which could be pointed out to show that the money received has been misappropriated or not spent for the purpose for which it is required. In fact apparently there would not be any complainant in this case in view of the facts that Mulakh Raj was a Mohtamim of the trust for which this land was given on muafi. Above all is now a finding of civil Court upholding the validity of the lease deeds. Once there is a finding by the Civil Court that these lease deeds are valid, no allegation for entering into lease deed or of criminal breach of trust could be made out. As already held this finding of the Civil Court would be binding on the criminal Court (see M/s Karamchand Ganga Pershad and another v. Union of India and others, AIR 1971 SC 1244 and V.M. Shah v. State of Maharashtra and another, 1995(3) RCR (Criminal) 459). The impugned order passed by Sessions Judge as such cannot be sustained. The same is set aside. The petitioners would stand discharged in terms of order dated 17.11.1995 passed by Additional Chief Judicial Magistrate, Kapurthala. The petition is allowed. November 11, 2008. (RANJIT SINGH) vj JUDGE