*HON’BLE MR JUSTICE RAMESH RANGANATHAN +W.P.No.32391 of 1997 % Dated 18-08-2008 # G.Vidyasagar Rao …. Petitioner Vs. $. The District Collector, Nalgonda and 2 others …. Respondent ! Counsel for the Petitioner: Sri C.Panduranga Rao ^ Counsel for the Respondent : G.P. for Revenue <GIST: > HEAD NOTE: ? Cases referred 1978(1) ALT 470 2 1978(1) APLJ SN 48 3 1988(1) ALT 437 4 AIR 1989 SC 2222 5 2001(2) ALD 448 6 AIR 1949 PC 264 7 1997(5) SCALE 667 8 1997(5) SCALE 388 9 AIR 1991 SC 1260 10 (1993) 2 SCC 567 11 (2007) 4 SCC 221 12 (2006) 3 SCC 605 13 (2007) 7 SCC 434 14 (2007) 8 SCC 751 15 AIR 1994 (SC) 853 16 (2003) 8 SCC 319 17 (2004) 6 SCC 325 18 (2005) 6 SCC 149 19 (2005) 7 SCC 190 20 (2005) 8 SCC 283 21 (2005) 10 SCC 465 22 (1975) 1 SCC 120 23 (1995) 3 SCC 693 24 (1995) 4 SCC 163 25 (2006) 7 SCC 756 26 2007(5) ALT 461 27 (2006) 8 SCC 662 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 32391 of 1997 Between: G.Vidyasagar Rao, S/o Late G.Ramchaner Rao, R/o Takkallapalli (V), Chintapalli, (M), Nalgonda, Nalgonda District. ..... PETITIONER AND 1 The District Collector, Nalgonda, P.O., Nalgonda District, A.P. 2 Revenue Divisional Officer, Dismissed for default as per court order dt:6/9/2000. Nalgonda, P.O. Nalgonda District, A.P. 3 Station House Officer, Dismissed for default as per court order dt:6/9/2000. P.S. Chintapalli, Nalgonda District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to pass orders, direction or Writ in the nature of Writ of Certirorari calling for the records from the office of the 1st Respondent bearing file No.E/560/97 dt:7/11/97 and the record of complaint filed by the second Respondent to the S.H.O., Chintapally order also by F.I.R. in Cr.No.106/97 from their respondent order of possession issued by the 1st respondent and to quash the same being illegal and unconstitutional and inoperative and to pass. Counsel for the Petitioner:MR.C.PANDURANGA RAO Counsel for the Respondent No.: GP FOR REVENUE The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 32391 OF 1997 ORDER: A writ of certiorari is sought to quash the order dated 7.11.1997, and the complaint filed by the 2nd respondent, (R.D.O, Nalgonda), in Crime No.106 of 1997. The 1st respondent is the District Collector, Nalgonda, and the 3rd respondent is the Station House Officer, Chintapalli P.S. Nalgonda District. The writ petition was dismissed for default, as against respondents 2 and 3, by order of this Court dated 6.9.2000. As such the second part of the prayer in the writ petition, to quash the complaint made by the 2nd respondent to the 3rd respondent in Crime No.106 of 1997, cannot be granted. It is necessary to note that, even in the first limb of the prayer, the order dated 10.9.1997 is struck off by pen and in its place the order dated ‘7.11.1997’ is written in hand, presumably by the counsel for the petitioner. The proceedings dated 7.11.1997 is the complaint made by the R.D.O, Nalgonda to the S.H.O, Chintapalli police station marking a copy thereof to the Superintendent of Police, the District Collector and the M.R.O, Chintapalli. Since the proceedings dated 7.11.1997 has alone been questioned in the writ petition on the erroneous premise that it had been passed by the 1st respondent, when, in fact, it emanated from the 2nd respondent, the said proceedings dated 7.11.1997 cannot also be interfered with since the writ petition has already been dismissed for default as against the 2nd respondent. Even if the proceedings dated 10.9.1997, which has been struck off, is presumed to be the order under challenge, a copy thereof has not even been filed and this Court is not made aware of its contents. All that can be gathered from the proceedings dated 7.11.1997 is that the District Collector, Nalgonda, vide letter dated 10.9.1997, had informed that the petitioner, before his appointment as Village Officer in the year 1982-83, had managed to tamper with the village records for the years 1962-63 till 1974-75 of Thakkallapalli village and, as a result, he was declared a non-surplus holder in C.C.No.5343/75/DVK on deletion of Ac.91-91 cents of land. The 1st respondent District Collector directed a complaint to be lodged against the petitioner for offences under Sections 193, 199 and 200 I.P.C. It is on the basis of this letter dated 10.09.1997 that the 2nd respondent R.D.O. had addressed letter dated 7.11.1997 to the 3rd respondent S.H.O who, in turn, had registered the complaint as Crime No.106 of 1997. Sri C.Panduranga Rao, Learned Counsel for the petitioner, would contend that, since a declaration had been filed by the petitioner and the Land Reforms Tribunal, after holding an enquiry, had, in its order dated 27.4.1977, declared him to be a non-surplus holder and the said order had attained finality, it was not open to the 1st respondent, after a lapse of 20 years, to direct the 2nd respondent R.D.O to file a criminal case alleging commission of offences under the I.P.C. Learned Counsel would contend that the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 is a self-contained code, that Section 24 provides for prosecution of a person for wilfully furnishing a false declaration and, as the procedural requirements under Section 24, read with Rule 18, have not been adhered to, the complaint lodged before the S.H.O is without jurisdiction and is liable to be quashed. Learned Counsel would place reliance o n Manchiraju Ramakrishna Paramahamsa v. the State of A.P., S.Jaipal Reddy v. Land Reforms Tribunal Kalvakurthy, T.Bala Goud v. The District Collector, Nizamabad District, Nizamabad, State of U.P v. R.K.Srivastava, Pinka Dhanarajuna Rao v. State of A.P. Before examining the contentions urged, and the judgments relied upon, it is necessary to refer to Section 24 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (A.P. Act 1 of 1973) (hereinafter referred to as ‘the Act’) and Rule 18 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974 (hereinafter referred to as ‘the Rules’). Section 24 of the Act relates to penalties and reads as under: 24. Penalty:-(1) If any person, who is liable to furnish a declaration under this Act wilfully and without reasonable cause or excuse, fails to furnish the declaration within the period prescribed or specified therefore by or under this Act or furnishes any declaration which he knows or has reason to believe to be false, incorrect or incomplete, he shall be punished with imprisonment for a terms which may extend to two years or with fine which may extend to two thousand rupees or with both. (2) If any person wilfully and without reasonable cause or excuse, contravenes any other provisions o this Act or o any rules made or orders issued thereunder, he shall be punished with imprisonment or a term which may extend to two years or with fine which may extend to two thousand rupees or with both. (3) If any Village Officer, or any officer of the Revenue, Registration or Survey and Settlement Department of the Government wilfully and without reasonable cause or excuse fails to report to the Revenue Divisional Officer any information which he may receive of any transaction in respect of any land made in contravention of any of the provisions of this Act, he shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees or with both. (4) No Court shall take cognziance of an offence punishable under this Act except with the previous sanction of the District Collector, which sanction shall be accorded subject to such rules as may be prescribed. Rule 18 relates to sanction of prosecution and reads as under: 18: Sanction of prosecutions:- (1) Before according any sanction for prosecution under the Act, the District Collector shall, issue a show cause notice to the person who is proposed to be prosecuted giving him an opportunity or making a representation in writing, and consider such representation and where the District Collector is satisfied prima facie the person has committed the offence wilfully and without reasonable cause or excuse and that the person should be punished in the interest of justice, he shall accord the sanction for taking cognziance of the offence by the Court. (2) Every sanction for prosecution shall be in writing and shall set out the reasons for sanctioning the prosecution. Admittedly, in the case on hand, the petitioner has not been issued a notice to show cause why sanction should not be accorded for his prosecution nor has he been given an opportunity of making a representation thereto. The question which arises for consideration is whether the direction given by the 1st respondent, in his letter dated 10.9.1997 addressed to the 2nd respondent, to lodge a complaint against the petitioner is liable to be quashed on the ground that the District Collector had not accorded sanction in accordance with Section 24 of the Act read with Rule 18. As mentioned hereinabove, sub-section (4) of Section 24, bars the Court from taking cognizance, of an offence punishable under the Act, without sanction of the District Collector. A Court is not competent to hear and determine a prosecution, the institution of which is prohibited in the absence of a proper sanction. A prosecution launched without a valid sanction is a nullity. (Yusofalli Mulla v. The Kind). Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosant act which affords protection to government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the innocent but not a shield for the guilty. (Mansukhlal Vithaldas Chauhan v. Gurarat) Taking cognizance is the act which the Court has to perform, and granting sanction is an act which the sanctioning authority has to perform. The latter is a condition precedent for the former. Sanction is not granted to the Court to take cognizance of the offence but is granted to the prosecuting agency to approach the Court concerned for enabling it to take cognizance of the offence and to proceed to trial. A valid sanction is a sine qua non for enabling the prosecuting agency to approach the Court to enable it to take cognizance of the offence. (Rambhai Nathbhai Gadhvi v. Gujarat) The order of sanction is an administrative and not a quasi-judicial act. No lis is involved. At any time before the Court takes cognizance of the offence the order of sanction can be made. The emphasis that "no Court shall take cognizance of the offence except with the previous sanction" posits that, before taking cognizance of the offence alleged, there must be before the Court the prior sanction given by the competent authority. Therefore, at any time before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is entitled to produce the order of sanction. Filing of charge-sheet before the Court without sanction per se is not illegal, nor a condition precedent. (State of Bihar v. P.P. Sharma). In the case on hand all that the 1st respondent has done is to direct the 2nd respondent to lodge a complaint with the S.H.O. who, on receipt of the complaint, has registered it as Crime No.106 of 1997. The complaint lodged relates to offences under the Indian Penal Code and not those under the Act. The bar under Section 24(4), for taking cognizance, is only in relation to offences under the Act and, since the offences alleged are not those under the Act, the bar under Section 24(4) of the Act has no application. The Criminal Procedure Code requires the investigating officer to investigate and submit his final report i.e., charge sheet under Section 173 Cr.P.C. and it is only thereafter that the Court is called upon to decide whether or not cognisance should be taken of the offence. Sanction for prosecuting the offender is required to be accorded only before cognisance is taken by the Court and not anterior thereto when a complaint is lodged with the S.H.O. Section 24(4), therefore, does not bar a complaint being filed before the S.H.O. With regards the plea that the Order of the Land Reforms Tribunal dated 24.7.1977 has attained finality, and that there is inordinate delay of more than 20 years from when the Land Reforms Tribunal passed its Order on 24.7.1977 and the impugned proceedings dated 10.9.1997/7.11.1997, it is well to remember that fraud vitiates all acts. ‘Fraud’ is a false representation by one who is aware that it was untrue with an intention to mislead the other who may act upon it to his prejudice and to the advantage of the representor. It is defined i n Oxford Dictionary as, ‘using of false representations to obtain an unjust advantage or to injure the rights or interests of another’. In Webster it is defined as, ‘deception in order to gain by another’s loss; craft; trickery; guile; any artifice or deception practiced to cheat, deceive, or circumvent another to his injury’. It has been defined statutorily in Section 17 of the Contract Act as including certain acts committed with connivance or with the intent to deceive another. In Administrative Law it has been extended to failure to disclose all relevant and material facts which one has a positive duty to disclose. It is thus understood as a deliberate act or omission to mislead the other to gain undue advantage. ‘It consists of some deceitful practice or wilful device resorted to with intent to deprive another of his right or in some manner to do him an injury’ (Black’s Law Dictionary). The effect of fraud, on any proceeding or transaction, is that it becomes a nullity. (State of Maharashtra v. Budhikota Subbarao (Dr)). Fraud may also be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit taking undue advantage of another. In fraud one gains at the loss of another. Fraud is an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. (A.V. Papayya Sastry v. Govt. of A.P.). Fraud cloaks everything. (N. Khosla v. Rajlakshmi). Fraudulent actions are non est in the eye of the law, (Tanna & Modi v. CIT), and, since all subsequent proceedings taken pursuant thereto are also a nullity, it would be wholly inequitable to confer a benefit on a party who is a beneficiary thereunder. (T.Vijendradas v. M. Subramanian). Fraud and justice never dwell together. Fraud and deceit ought to benefit none. (A.V.Papayya Sastry11) “Fraud avoids all judicial acts, ecclesiastical or temporal". A judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court, or by the highest court, has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. (S. P. Chengalvaraya Naidu v. Jagannath, A.V. Papayya Sastry11, Ram Chandra Singh v. Savitri Devi, Vice Chairman, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav, State of A.P. v. T. Suryachandra Rao; Ishwar Dutt v. Land Acquisition Collector; Lillykutty v. Scrutiny Committee, SC & ST; Chief Engineer, M.SEB. v. Suresh Raghunath Bhokare; Satya v. Teja Singh; Mahboob Sahab v. Syed Ismail; and Asharfi Lal v. Koili; Jai Narain Parasrampuria v. Pushpa Devi Saraf). If, indeed, the allegations of fraud and deceipt levelled against the petitioner are established, the order of the Land Reforms Tribunal dated 26.4.1977 would be rendered a nullity, and the mere fact that it has attained finality would be of little consequence. Though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants. (A.V. Papayya Sastry11). In the light of such serious and grave charges of fraud and deceipt, relating to non-declaration of an extent of nearly 100 acres of land, I see no reason to injunct the allegations made in the complaint from being investigated. It is only from the date on which the fraud is detected, and not from the date when it was committed, would the period of limitation begin to run. It is not even the petitioner’s case that if 10.09.1997, i.e, the date on which the District Collector addressed a letter to the 2nd respondent, is taken as the relevant date, the complaint filed on 07.11.1997 is beyond the period of limitation prescribed in Chapter XXXVI of the Cr.P.C. In any event, these are all matters which would come to light only on completion of investigation by the investigating agency. Now the judgments relied upon by the petitioner. I n Pinka Dhanarjuna Rao5, the question which arose for consideration was whether the Land Reforms Tribunal was a ‘Court’ and whether Section 5 of the Limitation Act was applicable to proceedings before the Land Reforms Appellate Tribunal. In S.Jaipal Reddy2, this Court held that the Land Reforms Tribunal was a quasi-judicial body and that, in the absence of any provision in the Act, it was not entitled to reopen cases disposed of by it earlier. In Manchiraju Ramakrishna Paramahamsa1, this Court held that the power of review is not an inherent power, that such power must be conferred by the statute and that the Land Reforms Tribunal did not have the power to reopen cases which had become final. In Arjala Manohara Rao v. State of A.P. the scope of Section 18 of A.P. Act 1 of 1973 fell for consideration. Neither was this Court called upon nor did it examine the question whether sanction for prosecution is a prerequisite for lodging a complaint. In R.K.Srivastava4, the Supreme Court held that if the allegations made in the F.I.R. were taken at face value, accepted in their entirety, and if they did not constitute an offence, then criminal proceedings instituted on the basis of such an FIR should be quashed. The FIR, in the present case, would reveal that the petitioner is alleged to have committed serious offences under Sections 193, 199 and 200 of the Indian Penal Code relating to fabrication of false evidence, giving false statements and use of false declarations. From a reading of the allegations in the F.I.R, and accepting its contents as true, it cannot be said that the said allegations do not attract the ingredients of Sections 193, 199 and 200 I.P.C. In T.Bala Goud3 this Court held that Rule 18 which requires the Collector to give reasons for sanction of prosecution was mandatory in character and was intended to act as a check on the exercise of power by the Collector. This Court further observed that sanction of prosecution by the Collector, while omitting to consider the representation submitted by the affected person, was a gross error and in violation of Section 24(4) of the Act read with Rule 18. As noted above, in the case on hand all that has been done by the 1st respondent is to direct the 2nd respondent to lodge a complaint with the Station House Officer. As to whether or not sanction should be accorded for prosecution of the petitioner is a matter for the first respondent to decide and not for this Court to presently examine. All that is needed to be observed is that, while sanction for prosecution is a pre-requisite for the Court to take cognisance, it is not a condition precedent for filing of a complaint before the Station House Officer. Neither Section 24 of the Act nor Rule 18 prohibits a complaint from being lodged with the S.H.O, more so when the offences alleged are those under the I.P.C. and not under the Act, nor is the Investigating Officer barred from investigating into these offences. In Union of India v. Madras Telephone Supreme Court & ST Social Welfare Association the Supreme Court held that where the rights of persons are determined in a duly constituted proceedings, which determination has attained finality, a subsequent judgment of a court or a tribunal taking a contrary view would not adversely affect such persons in whose cases orders have attained finality. The allegations levelled against the petitioner herein are of fraud and deceipt. Fraud vitiates all acts and renders orders passed as a result of such fraud a nullity. Even otherwise, it is not the order of the Land Reforms Tribunal which is sought to be reopened. All that the 1st respondent has done is to direct the 2nd respondent to lodge a complaint before the Station House Officer against the petitioner for his, allegedly, having committed certain offences under the Indian Penal Code. The consequence of a complaint being lodged is only the commencement of an investigation into the matter. The petitioner cannot use the process of court to preempt an investigation into the grave and serious allegations made in the complaint. The writ petition, as filed, is devoid of merits and is, accordingly, dismissed. However, in the circumstances, without costs. _____________ -8-2008 Note: L.R. copy to be marked B/o Asp/gs