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Punjab-Haryana High Court
Date Of Decision:01.03.2013 vs State Of Punjab And Others on 1 March, 2013

Civil Writ Petition No.2291 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Civil Writ Petition No.2291 of 2009

Date of Decision:01.03.2013

Daljinder Singh ...... Petitioner Versus

State of Punjab and others ...... Respondents CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA

Present: Mr. Karan Bhardwaj, Advocate for the petitioner. Mr. Amrit Pal Singh Gill, A.A.G. Punjab.

Mr. Vinod Kumar Kataria, Advocate for respondent No.5.

1. To be referred to the Reporters or not? Yes

2. Whether the judgment should be reported in the Digest? Yes RAJIV NARAIN RAINA, J.

The challenge in this petition is to an order dated 25.2.2008 (Annexure P-6) passed by the Deputy Commissioner, Moga, declining sanction under Section 197 of the Code of Criminal Procedure, 1973 to prosecute the fifth respondent Gurmeet Singh, Patwari, District Moga in FIR No.193 dated 28.6.2007 registered in Police Station Bagha Purana, District Moga, under Sections 420, 467, 468, 471, 120-B of the Indian Penal Code. It is urged that in view of the decision rendered by the Supreme Court in Prakash Singh Badal v. State of Punjab; (2007) 1 SCC 1 no sanction is required to prosecute a public servant for the offences committed under the aforesaid sections and especially in the context of the Prevention of Corruption Act, 1988. That may be true but criminal action is hard to divorce from mens rea. It is this core issue that needs to be examined and determined in this case where the challenge laid under Article 226 of the Constitution of India is to an impugned order declining prosecution of the Civil Writ Petition No.2291 of 2009 2 Patwari who penned a false revenue entry allegedly at the behest of one Prabh Singh.

The facts stated briefly are that the petitioner pleads that he entered into an agreement to sell land situate in village Faloor-2, Tehsil Bagha Purana, District Moga to one Gurnam Singh son of Jeet Singh, resident of village Chhannowala. The sale had to be registered till 5.5.2006 before the area Sub Registrar. On 1.5.2006, the petitioner states that he met the 5th respondent-Patwari then posted at Halqa Faloor-2 to get a Nakal Jamabandi of the land in dispute which document was required to execute the sale deed. The petitioner complained that the 5th respondent in connivance with said Prabh Singh entered the word "stay" on the Nakal Jamabandi despite of the fact that there was no stay ordered by any Court restraining transfer of land of the petitioner. Prabh Singh was portrayed as a land grabber and the Patwari accused of working in cahoots with him beyond the call of public duty in making the false entry in the Nakal Jamabandi by writing the word 'stay'. The petitioner pleads that the offences under Sections 420, 467, 468, 471, 120-B of the Indian Penal Code can be ascertained by comparing the photo copy with the original Jamabandi. Therefore, report No.368 dated 20.4.2006 on the disputed revenue record was false and engineered. In these circumstances, the Patwari had, according to the petitioner committed the aforesaid offences for which an FIR was lodged in the area Police Station. The petitioner further pleads that he has brought these facts to the notice of the Director Vigilance, Punjab. It is a fact that on his complaint, the Patwari was suspended and departmental proceedings were initiated against him for making false entry in revenue record supplied.

Civil Writ Petition No.2291 of 2009 3 On notice of motion having been issued, the Deputy

Commissioner, Moga has filed a detailed reply giving reasons which compelled him to decline sanction to prosecute the 5th respondent-Patwari. A rather sad and heart-rending tale has been revealed in the written statement. It goes like this. Prabh Singh son of Sudagar Singh was the only son of his parents. His father owned 18 acres of land in the village and died 30-35 years ago when Prabh Singh was only 6-7 months old. On the death of his father, the land was mutated in Prabh Singh's name and in favour of his mother. Prabh Singh inherited about 11 acres of land in village Bhalloor, District Moga from his father.

The petitioner-Daljinder Singh and his family members are residents of a neighbouring village and allegedly purchased Prabh Singh's land sometime in 1991-92. Prabh Singh is a polio stricken and frail bodied person. Prabh Singh challenged the genuineness of the sale deeds in the Civil Court at Moga by bringing suit on 17.3.2006. When the petitioner- Daljinder Singh came to know of the filing of the suit, he took steps to sell off the land. He got a copy of the Jamabandi from the Patwari who entered the remark of 'stay' on the copy of the Jamabandi. When this fact was brought to the notice of the Deputy Commissioner, Moga, the Patwari was suspended. Departmental inquiry was conducted and allegations against the fifth respondent were proven. He was issued notice for major punishment. The Patwari submitted his reply saying that the error had occurred without intention as he had little knowledge of English. His reply was considered and before he could be given personal hearing to award punishment a large delegation of elders of the village including the Sarpanch and members of Panchayat met up with the Deputy Commissioner, Moga in his office and Civil Writ Petition No.2291 of 2009 4 and brought to his notice some startling and shocking facts. The village community apprised the Deputy Commissioner that Prabh Singh's land was actually usurped by the petitioner-Daljinder Singh in the early nineties when terrorism in Punjab was at its peak. Prabh Singh was reportedly kidnapped in 1988 and kept in illegal captivity in unknown places for years together. He is stated to have been tortured. His mother, who was illiterate died penniless serving as a housemaid in a village house. In the midst of his travails, Prabh Singh returned to his village after a gap of several years and told his people of his story during the intervening period. But by that time, not only his agricultural land but his house too, had been taken away by Daljinder Singh, Baljindeer Kaur and Mohinder Singh. Prabh Singh started working as a "siri" (farm labour) with some farmer. However, the people of the village empathetic towards him collected money at their own level and encouraged Prabh Singh to retrieve his land and house back from the present petitioner by challenging the "fake" and "fabricated" sale deeds in the Civil Court. Thus Prabh Singh filed a case in the Civil Court on 17.3.2006. The learned trial court issued notice to the defendants i.e. the present petitioner. After notice and hearing the parties to the suit, the application under Order 39 Rules 1 & 2, CPC was allowed and an ad interim stay order restraining sale or alienation of land in dispute was issued by the trial court on 10.06.2006. The case is still pending in the Court below.

To return to the rest of the facts as were unfolded before the Deputy Commissioner, Moga are best narrated in his own words in the written statement. This reads:

" The people further told the answering respondent that the patwari had incorporated the entry of 'stay' on their (people's) Civil Writ Petition No.2291 of 2009 5 asking as they pleaded with him that it was an act which will save the poor man i.e. Prabh Singh from further exploitation and torture, as entry of this single word "stay" in the revenue record would stall Daljinder Singh's plans to further alienate this land and complicate the case. As the case was already pending in the court, Patwari was shown the papers of the plaint and he made an entry without any tinge of greed, consideration or malafide intention. Stay was actually granted by the Court some days after that. After listening to the above, answering respondent decided to get the matter deeply probed first and to keep the file open for taking action against the Patwari after the things crystallised. This is why the answering respondent then wrote to Tehsildar, Baghapurana vide letter No.867/S.K. Dated 8.3.2008 to conduct a probe into the matter as (Annexure R-5). Tehsildar, Baghapurana submitted his report on 09.04.2008 vide letter No.214/Reader. The report substantiated the village elder's version. A translated version of the enquiry report is placed as (Annexure R-6).

Complete details of the enquiry were sent to SSP, Moga vide my D.O. Letter No.1437 dated 6.5.2008 as (Annexure R-6A). For a deeper probe for taking necessary action against Bhagwan Singh, Daljinder Singh (his son) Daljinder Singh's wife and Mohinder Singh who had allegedly usurped the land and house of Prabh Singh Reminders have been issued to the Police/SSP vide letter No.2250/SK dated 19.9.2008 and D.O. no.894/SK dated 15.6.2009 for conducting the probe but so far, police has not probed the issue.

On receipt of the present Civil Writ Petition, just to reassure myself, answering respondent again asked SDM, Baghapurana vide letter No.1060/SK dated 3.7.2009 to reinvestigate the issue SDM, Baghapurana has submitted the report and has again Civil Writ Petition No.2291 of 2009 6 substantiated the allegations levelled by Prabh Singh and village elders, vide his report dated 214/Reader dated 15.7.2009 as (Annexure R-7).

On the other hand, police conducted a probe into the complaint filed by Daljinder Singh against the Patwari. S.H.O., P.S., Baghapurana, vide his report dated 5.11.2006, found the patwari "not guilty". D.S.P., Baghapurana forwarded that report to S.S.P., Moga who had "Seen Filed" the same on 6.12.2006 as (Annexure R-8). After that, why another enquiry was conducted, how it was conducted, is not known to the answering respondent but the only reference which this office received from the police was in the form of a request for permission for prosecution of the patwari. It is submitted that the answering respondent does not at all intend to shield the guilty official i.e. Patwari but at the same time it is incumbent upon the officer to look into all aspects, all circumstances, allegations and their truth, before awarding punishment to his lower official. I chose not to accord permission for prosecution as I was not convinced that he has committed such a fraud that he should face the trauma of a trial. Otherwise also, he can be proceeded against departmentally and severest possible punishments are there which can be awarded under the Punishment and Appeals Rules. Keeping apart everything discussed above, it is prima facie felt that the petitioner thought of disposing of the land (in dispute) exactly after Prabh Singh filed a civil suit in the court and challenged the genuineness of the sale deeds. Petitioner Daljinder Singh had in fact received the notice of the civil suit before he went to patwari to get a copy of jamabandi and for the purpose of selling it. Hence it is highly probable that there is something suspicious in the sale deeds executed in 1991-92." (underlining for emphasis) Civil Writ Petition No.2291 of 2009 7 The petitioner has not filed a replication to controvert the stark and candid facts narrated in the written statement of the sanctioning authority which itself should normally foreclose his case on the principle of non-traverse.

Furthermore, in response to the notices issued by this Court the fifth respondent-Gurmeet Singh/Patwari has filed a reply. Mr. Kataria, learned counsel appearing for him relies on letter dated 6.2.2008 (Annexure R-3) found in the written statement of the Deputy Commissioner, Moga as well, in which the Patwari apprised his superior officer the real reason as to why he wrongly mentioned the word "stay" in the copy of the Jamabandi. Mr. Kataria has drawn my attention to the order passed by this Court on 22.11.2007 in Cr. Misc. 49453 M of 2007 filed under Section 438 of the Code of Criminal Procedure, 1973 through which application Prabh Singh had applied for anticipatory bail in FIR No.193 dated 28.6.2007 registered at the behest of the petitioner. Prabh Singh was admitted to anticipatory bail by this Court. It has been recorded in the order as follows: "From the perusal of the record, it is apparent that petitioner Prabh Singh had supplied a copy of the plaint to the revenue authorities and petitioner Gurmeet Singh had reproduced the contents of the plaint in the revenue record. Thereafter, in the Jamabandi an entry was incorporated that there has been a stay order by the civil Court vide report No.368 dated 20.4.2006. The entry in the jamabandi is not made by Gurmeet Singh but it is based on the report No.368 dated 20.4.2006 entered by Gurmeet Singh."

The interim stay granted by the trial Court is operating till date. Before proceeding further with the discussion on the nature and quality of the impugned order declining sanction to prosecute the 5th respondent it would be necessary to reproduce it. It reads in translation thus: Civil Writ Petition No.2291 of 2009 8 "On considering the challan file and police file received with the letter pertaining to the above mentioned subject, it was found that an application resembling to the FIR registered against Gurmit Singh, Patwari was presented in this office on 6.6.2006. Acting immediately on this application my predecessor in office suspended the Gurmit Singh Patwari from his service vide order No.63/SK of 2006 Pinth No.1237-43/SK dated 9.6.2006 and action has proceedings have been initiated against the Patwari as per Punjab Civil Services (Punishment & Appeal) Rules 1970. Considering these circumstances the undersigned does not consider it appropriate to give sanction under Section 197 Cr.P.C. registered for presenting the FIR/case in the Court. So the received police file and challan file is sent back." Having heard learned counsel for the parties and having examined the matter from all possible angles, I would only say that the impugned order declining sanction does not warrant any interference. The impugned order declining sanction may not be very articulate in the sense of containing sum total of the reasons in support of conclusion but the history behind the passing of the impugned order narrated in the written statement together with the examination of the police report and the challan file presented under Section 173 Cr.P.C commends me as one such as is based on justice, equity and good conscience. The Deputy Commissioner may not have fully acquainted himself with the niceties and the technicalities of the law of sanction and the need for articulating reasons however brief but he well understood the niceties and the non-technicalities of the law of doing justice. I should not be taken as paying any tribute to what the Patwari did, but what he did was intended to do justice to a hapless person at the behest of the community where Prabh Singh was born. In my considered opinion Civil Writ Petition No.2291 of 2009 9 he should have brought his anxiety to the notice of his superiors for them to take action whatever necessary as they deemed appropriate. In any event he should not have taken the law into his own hands however well intended. After all he has been indicted at the departmental inquiry and faces the wrath of misconduct. But it is another matter to prosecute him for what he did wittingly or unwittingly, without any personal motive or apparent extraneous consideration. The Deputy Commissioner, Moga has balanced out the scales of justice when he says that the law will take its course as far as the 5th respondent is concerned for making the entry of 'stay' in the nakal jamabandi. I cannot lose sight of the fact that ad interim stay was indeed granted thereafter by a Court of competent jurisdiction frustrating the effort of the petitioner to sell the land in dispute to non-party Gurnam Singh and create third party rights for Prabh Singh to contend with the ensuing complications, with hardly any resources at his command. Prabh Singh was reduced to work as a Siri by force of circumstances left without hearth and home depending entirely on the civil suit for his liberation. In his saga I am reminded of the Book of Job in the Old Testament.

To return to the mainstream debate on the question of sanction, I think the Deputy Commissioner, Moga was not expected to write a judgment or thesis while declining sanction to prosecute the 5th respondent. Anything said further may have had the deleterious effect of causing prejudice to either party. He did refer though to the police report and the challan docket which was of material consideration. There was sufficient indication and reference to background official record in the impugned order which could form subject matter of exercise of certiorari jurisdiction by this Court on judicial review when called upon, since the writ of Civil Writ Petition No.2291 of 2009 10 certiorari goes to record. In passing this order, this Court is conscious that a criminal revision is maintainable against the impugned order declining sanction to prosecute but that objection was not raised by the respondents, and even if it were, there would be no absolute bar in the exercise of constitutional writ jurisdiction in a case of this kind where the petitioner has himself ignited the jurisdiction of this Court in a writ petition. In any case, Writ jurisdiction is the larger circle while criminal revisional jurisdiction the smaller within it. I may be taken to have exercised both concurrently in venturing to do justice.

This case is an archetypal example of King Solomon Justice meted out. The stand of the Deputy Commissioner, Moga deserves to be appreciated in the holistic view taken in defence of the weak and against a sinister land grabber. He was stopped dead in his tracks on revelation of startling facts as they unfolded before him through the voice of the village community that had no personal axe to grind in seeking justice from the Deputy Commissioner, Moga in his office for Prabh Singh. Any reasonable and sensitive bureaucrat ought to have taken the same decision in declining sanction on the facts of this case and in the shadow of the petitioner as complainant driven by ulterior personal motive. I find no cogent or worthwhile reason to quash the impugned order which does substantial justice in the peculiar, special and unparalleled circumstances of this case. The 5th respondent can be served his just desserts on quantum of punishment for the alleged misconduct at the hands of the disciplinary authority at the end of the disciplinary proceedings. That call has to be taken by the punishing authority alone and is not the business of this Court at present to opine.

Civil Writ Petition No.2291 of 2009 11 The petitioner has not come to Court with clean hands, clean mind, clean heart, clean motive, clean intentions and clean objective which appears ex facie to be an attempt to wrest an order from this Court to use for collateral purposes in the suit and to maliciously prosecute the 5th respondent, his real threat being Prabh Singh. Therefore, for the several reasons above stated the petition deserves to be dismissed. The judgment in Prakash Singh Badal v. State of Punjab supra is clearly distinguishable on the special and peculiar facts of this case for want of, inter alia, mens rea which is an essential ingredient to bring home the charge of a criminal nature. The charge against the 5th respondent is not one of corruption or of moral turpitude of a base kind. He may have got carried away in what he did on a copy of the jamabandi though his office demanded he should not have. Though strictly not called upon to do so I strongly feel that since the suit has remained pending for the last six years to the detriment of Prabh Singh of being informed of his rights agitated in the suit, a direction is required to be issued in the interest of speedy justice to the learned Civil Judge (Junior Division), Moga to expedite the hearing in Civil Suit No.120/17.03.2006 titled Prabh Singh v. Daljinder Singh and others and to conclude the same within six months from the date of receipt of a certified copy of this order, and to ask for no extension except for the most cogent reasons and that too in advance.

This petition is consequently dismissed with costs of Rs 10,000/- to be paid by the petitioner to Prabh Singh son of Sudagar Singh son of Attar Singh resident of village Bhalloor, Tehsil Bagha Purana, District Moga, who is ordered to be impleaded as party respondent No.6 to this petition ex debito justitiae. Registry is directed to make necessary Civil Writ Petition No.2291 of 2009 12 correction in the memo of parties. Let the costs be paid by the petitioner to Prabh Singh before the trial Court on the next date of hearing. A certified copy of this order be transmitted by the office to the trial court at Moga seized of the aforesaid suit for compliance.

( RAJIV NARAIN RAINA )

JUDGE

01.03.2013

rajeev