Karnataka High Court
Sri Lingesh K S vs State Of Karnataka By on 13 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 30.08.2024
Pronounced on : 13.09.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.5030 OF 2023
BETWEEN:
1. SRI LINGESH K. S.,
S/O LATE SRI SOMASHEKARAPPA
AGED ABOUT 64 YEARS
EX-MEMBER OF LEGISLATIVE
ASSEMBLY(MLA) AND
CHAIRMAN COMMITTEE FOR
REGULARIZATION OF UNAUTHORIZED
OCCUPATION (BAGAIR HUKUM SAGUVALI SAMITHI)
BELUR ASSEMBLY CONSTITUENCY(195)
HASSAN DISTRICT - 573 115.
ALSO AT KARIKATTEHALLY VILLAGE
CHATCHATNAHALLI HASSAN - 573 121.
2. SRI G.K.KUMAR
S/O KENCHEGOWDA
AGED ABOUT 57 YEARS
MEMBER OF COMMITTEE FOR
REGULARIZATION OF UNAUTHORIZED
OCCUPATION (BAGAIR HUKUM SAGUVALI SAMITHI)
BELUR TALUK, HASSAN DISTRICT - 573 115.
ALSO AT HALEGENDEHALLY
2
HASSAN DISTRICT - 573 115.
3. SMT. SHAILA MOHAN
W/O SRI MOHAN
AGED ABOUT 52 YEARS
MEMBER OF COMMITTEE FOR
REGULARIZATION OF UNAUTHORIZED
OCCUPATION (BAGAIR HUKUM SAGUVALI SAMITHI)
BELUR TALUK, HASSAN DISTRICT - 573 115.
ALSO AT KERAGODU, AREHALLY VILLAGE
BELUR TALUK, HASSAN - 573 101.
4. SRI T.R.RAMESH
S/O RUDRAIAH
AGED ABOUT 40 YEARS
MEMBER OF COMMITTEE FOR
REGULARIZATION OF UNAUTHORIZED
OCCUPATION (BAGAIR HUKUM SAGUVALI SAMITHI)
BELUR TALUK, HASSAN DISTRICT - 573 115.
ALSO AT THENDEKERE VILLAGE
IBBEDU, HASSAN - 573 216.
5. SRI PARVATHA GOWDA
S/O KALLEGOWDA
AGED ABOUT 52 YEARS
EX-MEMBER OF COMMITTEE FOR
REGULARIZATION OF UNAUTHORIZED
OCCUPATION (BAGAIR HUKUM SAGUVALI SAMITHI)
BELUR TALUK, HASSAN DISTRICT - 573 115.
ALSO AT KELEHALLI VILLAGE
BENNUR, HASSAN - 573 115.
6. SMT. CHETANA M. R.,
W/O G.K.KUMAR
AGED ABOUT 40 YEARS
3
EX-MEMBER OF COMMITTEE FOR
REGULARIZATION OF UNAUTHORIZED
OCCUPATION (BAGAIR HUKUM SAGUVALI SAMITHI)
BELUR TALUK, HASSAN DISTRICT - 573 115.
ALSO AT GENDEHALLI VILLAGE
HASSAN - 573 115.
7. SRI ESHWAR PRASAD
S/O KASHAIAH
AGED ABOUT 45 YEARS
EX-MEMBER OF COMMITTEE FOR
REGULARIZATION OF UNAUTHORIZED
OCCUPATION (BAGAIR HUKUM SAGUVALI SAMITHI)
BELUR TALUK, HASSAN DISTRICT -537 115.
ALSO AT HAGARE VILLAGE
HASSAN - 573 216.
8. SRI S.N.LINGESH
S/O LATE NANJEGOWDA
AGED ABOUT 63 YEARS
EX-MEMBER OF COMMITTEE FOR
REGULARIZATION OF UNAUTHORIZED
OCCUPATION (BAGAIR HUKUM SAGUVALI SAMITHI)
BELUR TALUK, HASSAN DISTRICT - 573 115.
ALSO AT NO.697/1, 11TH CROSS
K.R.PURAM, HASSAN - 573 201.
9. SRI RANGANATH B. R.,
S/O RANGANAYAK
AGED ABOUT 57 YEARS
EX-MEMBER OF COMMITTEE FOR
REGULARIZATION OF UNAUTHORIZED
OCCUPATION (BAGAIR HUKUM SAGUVALI SAMITHI)
BELUR TALUK, HASSAN DISTRICT - 573 115.
4
ALSO AT NO.175, HOSANAGARA
BELUR TALUK, HASSAN - 573 115.
... PETITIONERS
(BY SRI ASHOK HARANAHALLI, SR. ADVOCATE FOR
SRI SRINIVAS RAO S. S., ADVOCATE)
AND:
1 . STATE OF KARNATAKA BY
BELUR POLICE STATION
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU - 560 001.
2 . K.C.RAJANNA
S/O LATE CHIKKAMUNISWAMY
AGED ABOUT 42 YEARS
RESIDING AT 3RD MAIN ROAD
GANDHINAGAR, KOLAR - 563 101.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP FOR R1;
SRI UMAPATHI S., ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C/528(BNSS) PRAYING TO QUASH THE FIR IN CR.NO.98/2023
REGISTERED BY BELUR POLICE STATION AGAINST THE
PETITIONERS FOR THE OFFENCES P/U/S 468, 464, 465, 471, 409,
420 AND 120B OF THE IPC, 1860, PENDING ON THE FILE OF THE
XLII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU (SPL. COURT FOR TRIAL OF CASES FILED AGAINST
SITTING AS WELL AS FORMER MP/MLA'S TRIABLE BY THE
MAGISTRATE), BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 30.08.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
5
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioners/accused Nos. 1 to 9 are knocking at the doors
of this Court calling in question registration of a crime in Crime
No.98 of 2023 for offences punishable under Sections 468, 464,
465, 468, 471, 409, 420 and 120B of the IPC, pending before the
XLII Additional Chief Metropolitan Magistrate, Bengaluru.
2. Facts, in brief, adumbrated are as follows:-
The petitioners at the relevant point in time i.e., between
2016 and 2023 were in the Council, all of them being political
entities appointed as Chairman and Members of a particular
Committee; the Committee known as Bagair Hukum Saguvali
Samithi (hereinafter referred to as 'the Samithi' for short). Accused
No.1 / 1st petitioner was at the relevant point in time a Member of
the Legislative Assembly of Belur constituency. He was the
Chairman of the Samithi. Accused Nos.2 to 4 were its members and
accused Nos.5 to 10 were the erstwhile members. Accused Nos.11
to 14 are the Tahsildars who were functioning at the relevant point
in time at the said place and were Secretaries of the Samithi. The
6
allegation revolves around the functioning of the said Samithi. It is
alleged that the Samithi has created records and bartered away
Government lands to an extent of 2750 acres to 1430 bogus
beneficiaries, which are valued at more than `750/- crores in the
constituency of accused No.1, who was the Chairman of the
Samithi. Based upon this allegation, the 2nd
respondent/complainant seeks to knock at the doors of the
jurisdictional Police to register the complaint. No action was taken.
He knocks at the doors of the learned Magistrate invoking Section
200 of the Cr.P.C. seeking a reference for conduct of investigation
into the allegations so made. The complaint is referred for
investigation to the jurisdictional Police under Section 156(3) of the
Cr.P.C., after which a crime comes to be registered in Crime No.98
of 2023 for the afore-quoted offences. This Court by its order
dated 16.06.2023 directed that no precipitate action be taken
against the petitioners and the same is subsisting even as on date.
3. Heard Sri Ashok Haranahalli, learned senior counsel
appearing for the petitioners, Sri B.N. Jagadeesha, learned
Additional State Public Prosecutor appearing for respondent No.1
7
and Sri S. Umapathi, learned counsel appearing for respondent
No.2.
4. The learned senior counsel would seek to contend that the
complaint is bald and vague. What are the lands that are granted
or what are the documents that are fabricated to grant the lands in
favour of fictitious persons is not forthcoming from the complaint. If
the complaint is so bald, the learned senior counsel would submit
that what investigation the police would do, is un-understandable.
He would submit that all the allegations are untrue and some of the
accused being Government servants, no sanction is accorded under
Section 197 of the Cr.P.C. The learned senior counsel would submit
that the present complaint is an abuse of the process of law and the
members of the Samithi have acted strictly in consonance with law.
5. Per contra, the learned counsel for the complainant would
take this Court through the statement of objections so filed by him
and reports of Government servants filed by themselves when
enquiry was directed to be held by the Assistant Commissioner into
the illegalities. The Assistant Commissioner clearly holds that all
the lands granted were bogus based upon fake genealogical tree
8
certificates and granted to fake beneficiaries. The Government land
in this manner is illegally donated for personal gains of the
members of the Chairman, members of the Samithi and officers.
He would contend that the question of sanction would arise only
after investigation. The matter should be permitted to be
investigated.
6. The learned Additional Special Public Prosecutor would toe
the lines of the learned counsel for the complainant and would
contend that investigation is in progress and in the light of the
direction not to precipitate, the investigation is stalled. Therefore,
he seeks dismissal of the petition and allowing the investigation to
go on.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and perused the material
on record.
8. The Samithi which is known as Bagair Hukum Saguvali
Samithi was constituted for the purpose of regularization of lands
by unauthorized occupants as obtaining under Section 94A of the
9
Karnataka Land Revenue Act, 1964. The Chairman of the Samithi
was the 1st petitioner, a then sitting Member of the Karnataka
Legislative Assembly. In terms of the provisions of law, three
members can be appointed to the Samithi. They were appointed by
accused No.1. They are accused Nos. 2, 3 and 4; Accused Nos.5 to
10 are previous members of the Samithi and accused Nos.11 to 14
were Tahsildars working at the relevant point in time at Belur. The
petitioners who have knocked at the doors of this Court are accused
Nos.1 to 9. The Tahsildars are not before this Court. The Samithi
assessed the applications submitted before it. There were 1430
applicants who wanted their unauthorized occupation to be
regularized of about 2750 acres of Government lands as those
applicants claimed that they were in unauthorized occupation of
Government lands. The applicants are said to have given several
documents in support of their claim. Those documents are alleged
to be fictitious, fabricated and that they were never unauthorized
occupants of Government lands. The lands are granted to those
1430 applicants ranging 2750 acres.
10
9. The smoke of illegality went up the air which led to an
inquiry being conducted at the hands of the jurisdictional Assistant
Commissioner. The Assistant Commissioner directs the Tahsildar to
submit a report after conduct of spot inspection of all the lands and
verification of records. The Tahsildar conducts a spot inspection,
draws up a report and submits the same to the Assistant
Commissioner. The report of the Tahsildar reads as follows:
"£ÀA. CwPÀæªÀÄt.12/20-21 ¢£ÁAPÀ:17/11/2020
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¢£ÁAPÀ: 15/06/2019.
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20, ¢£ÁAPÀ: 06/10/2019.
********
11
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Right to Information Act, reads as follows:
"No.L.N.438/2021-22 Date:14/10/2022
To,
The Deputy Commissioner,
Hassan District,
Karnataka
Subject: Inquiry of land grants done during 2016 to
2022 in Belur Taluk-reg.
22
Reference: 1. Letter No.LND (2)294/2019-20 dated:
19/12/2020 from the office of Deputy
Commissioner, Hassan District.
2. Letter No. Athikramana: 12/202-21 dated
17/11/2020 from office of Tahsildar,
Belur Taluk, Hassan District.
Respected Madam,
1. With reference to the subject cited above, the undersigned
would like to bring to the notice of your kind authority the
information regarding the Letter No. Athikramana: 12/2020-
21 dated: 17/11/2020 from office of Tahsildar, Belur Taluk,
Hassan District. (shown below)
2. In response to the Letter No. Athikramana: 12/2020-21
dated: 17/11/2020 from office of Tahsildar, Belur Taluk,
Hassan District, the undersigned has received a letter vide
Letter No. LND(2)294/2019-20 dated: 19/12/2020 from the
office of Deputy Commissioner, Hassan District. (shown
below)
In your letter vide Letter No. LND (2)294/2019-20 dated:
19/12/2020 from the office of Deputy Commissioner, Hassan
District, directions have been issued to the undersigned to
identify the land the land grants of Belur Taluk which are
made in violations of Karnataka Land Revenue Act, 1964,
Karnataka Land Revenue Rules, 1966 Karnataka Land Grant
Rules, 1969 and circulars of Government of Karnataka
regarding land grant rules. Also the directions have been
issued by your kind office to identify the officials involved in
such unscrupulous land grants and send the report to your
kind office.
3. As per the directions by your kind authority, the undersigned
has inspected the 1430 land grants files of Belur Taluk
pertaining to the years 2016 to 2022 The details of the land
grants with the remarks of the undersigned are enclosed
(Annexure-1).
4. The findings of the inspections are as mentioned
below:
23
a. A total of 2750.86 Acres of Government land has been
granted (Saguvali Chit given) by the 05 Tahsildars
namely, Puttashetty B.S, Parmesh H.S, B.A. Jagadeesh, J
Umesh and U.M. Mohan Kumar who had worked in Belur
Taluk, Hassan District during 2016 to 2022. Out of the
2750.86 Acres Government land (Presumptive value `
6,87,71,48,750.00 i.e. ` Six Hundred and Eighty Seven
Crores, Seventy One Lakhs Forty Eight Thousands and
Seven Fifty) granted, Khatha entries have been made for
2560.80 Acres (Presumptive value ` 6,40,20,05,000.00
i.e. ` Six Hundred and Forty Crores, Twenty Lakhs and
Five Thousands). The details are enclosed (Annexure-2).
b. The 1430 inspected land grant files are categorized
broadly into 03 colour codes which are Red, Yellow and
Blue. The red category grant files are having major lapses
in the grant procedure and also include illegal grants. The
yellow category grants are having comparatively lesser
lapses in the grant procedure but still require a detailed
verification of grant. The blue category grant files are the
files in which the grant procedure has either been
completed fully or partially but the Saguvali chits are yet
to be issued.
Grant Number Sum of Presumptive value Sum of
Category of of Government Land (25 Total
Grants lakh per acre inclusive of Acres
Maramalki)
Blue 46 `17,88,46,875.00 71.54
Red 1261 `6,26,58,36,250,00 2506.33
Yellow 123 `61,13,12,500.00 244.53
Grand 1430 7055995625 2822.40
Total
c. Out of 1430 grants files inspected, 1384 saguvali chits
have been issued and 1260 Khatas have been done for
Government land by various Tahsildars as shown below.
(Annexure-3)
Tahsildar Tahsildar Doing Khata
24
giving B.A H.S J.Umes N.V Puttashe U.M.Mohan Saguvali Grand
Saguvali Jagde Parmesh h Natesh tty B.S Kumar Chit Total
Chit esh Given,
Khata to
be done
B.A 2 0 0 0 0 0 1 3
Jagdeesh
H.S 0 498 10 39 0 64 42 635
Parmesh
J.Umesh 0 0 147 23 0 28 66 264
Puttashetty 0 42 10 9 279 35 15 390
B.S
U.M.Mohan 0 0 0 0 0 74 0 74
Kumar
Grand Total 2 540 167 71 279 201 124 1384
d. The total acres of Government land granted by each
Tahsidars along with The presumptive value of the
Government land so granted are enclosed (Annexure-4)
e. For the Total acres of the Government land granted, Khata
dorie by each ahsidars along with the presumptive value
of the Government land granted are enclosed. (Annexure-
5)
f. Total acres of Government land granted and its
presumptive value Hobli wise and color code wise,
granted by each Tahsildar is enclosed. (Annexures-6, 7,
8, 9, 10 and 11)
25
g. Total acres of Government land granted and Khata done,
Hobli wise by each Tahsildar is enclosed (Annexures-12,
13, 14, 15, 16, 17, 18 and 19)
5. Analysis: 5.
a. Original Form 53 application is not there in 99% of
the files presented in Bagar Hukum Committee
during the period from 2016 to 2022 in Belur taluk.
File processing is based on handwritten ledger
extract copy prepared by village accountants and
Office Shirestedars themselves.
b. Previous Committee proceedings are not verified
regarding rejection of earlier applications. The
original applications are not reviewed and file
proceedings have started after about 15 to 18 years
of receipt of the applications. In many of the cases
the applications already rejected by the previous
committee are again taken up and approved.
c. Tahsildars spot inspection report for the land
granted is not present in the files. Such spot
inspections are ought to be done personally by the
Tahsildars themselves or through their
jurisdictional Deputy Tahsildars. In most of the
files, Village Accountants have prepared sketches
without any cross verification or approval by the
concerned ADLR. This has led to the problem of
grant of already previously granted land for which
Phodi was not done, overlapping of sketches for the
land grants proposed for more than one grantees
and granting of land to ineligible persons.
Sum of Presumptive value of Government Land Granted
(Rs. 25 lakh per acre inclusive Maramalki)
26
d. In some cases Original 56 register entries are
destroyed to evade the proof whether the
applications have been rejected previously. Based
on the Fake/ Notarized Family Genealogical Tree
certificates lands have been granted to fake
beneficiaries. Also previously rejected land grant
applications are reconsidered after the applicant
has portioned his property and transferred it to
name of his relatives via registered partition deeds
to show himself as eligible.
Sum of Presumptive value of Government Land Khata
done after Grant (Rs. 25 lakh per acre inclusive of
Maramalki)
27
e. Two Tahsildars Puttashetty B.S and Parmesh H.S
have made 390 (i.e., total 893.57 Acres and
Presumptive value of Government land
`2,23,39,25,000.00) and 653 (i.e., total 1245.03
Acres and Presumptive value of Government land `
3,11,25,67,500.00) Government land grants
respectively which comes out to be 75.36% (i.e.
1043 land grants) out of the total 1384 Saguvali
chits issued from the Taluk Office Belur during 2016
to 2018. Many of these saguvali chits are issued
with major lapses in the procedure or even without
putting the applications in front of the Bagar
Hukum Committee. Out of 390 government land
grants made by Tahsildar Puttashetty B.S, 15 files
are still pending for the Khata. Similarly out of 653
government land grants made by Tahsildar
Parmesh H.S, 42 files are pending for the Khata.
f. In more than 99% of files there has been no
consideration made with regard to the cattle
population and sufficiency of the land reserved for
cattle (Gomala) in the village, while making the
land grants.
g. Land reserved for the Ex-service men, Hemavathi
Reservoir Project and Yagachi Reservoir Project is
also disposed illegally through Akrama Sakrama
land grants.
h. After the first of the Unauthorised Cultivation
Regularization Committee the form 54 is not
published as per law in the Grama Chavadi for
taking public objections to the grant proposals put
for the consideration. The signatures made on the
Form-54 are suspected to be fake as neither the
name nor the father's name has been mentioned of
the villagers who have signed on the form -54. In
some cases even if the objections are placed
against making the land grants in favour of persons
who already have excess land holding, such
objections are not duly considered by the Tahsildars
28
while putting up the files for second meeting of the
grants Unauthorised Cultivation Regularization
Committee.
i. In some of the grants the person in whose favour
the land has been granted does not belong to the
Belur Taluk. Land has been granted to people
whose residence is in Bangalore and other Districts
except Hassan.
j. The file numbers have not been properly given for
many of the grant files. The file numbers are
changing in the revenue inspector report, Belur
Taluk case worker report and the saguvali chit issue
register for the same grant. In some of the files the
grant processing has been initiated and done
without even giving any file number to the file.
k. The Mara Malki has not been deducted to the
Government treasury most of the land grants files
inspected causing loss of revenue to the
Government of Karnataka.
6. The details of all the files inspected along with the remarks
are enclosed along with this letter. All the files for the 1430
land grants inspected by this office have been sealed off in
three trunks in 29 bundles and handed over to the Record
Room of Taluk Office Belur. One set of the record of the land
grants files inspected is shared in the soft copy with the
Taluk Office Belur for their office perusal. All the files have
been duly scanned and the records have been burnt into 5
sets of 11 DVDs for the purpose of further perusal and
investigation. (One such set is enclosed herewith). One set of
the records of the 1430 land grants inspected is shared and
placed in two systems in the soft copy with the Taluk Office
Belur for their office perusal.
7. This is submitted for your kind consideration and necessary
action please.
Yours sincerely,
Sd/-
29
(Prateek Bayal IAS)
Assistant Commissioner,
Sakleshpura Sub-Division,
Hassan District, Karnataka.
(Emphasis added)
The 2nd respondent/complainant then seeks to register a complaint
before the jurisdictional Police on 24.01.2023. The complaint reads
as follows:
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30
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31
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This was not acted upon. Further, a complaint was also made to
the Superintendent of Police. Therefore, Section 154(1) and 154(3)
of the Cr.P.C. stood complied. Even then, no action was taken. It
is then a complaint comes to be registered before the learned
Magistrate. The complaint did contain excerpts of the report quoted
hereinabove. Therefore, quoting the complaint would become
unnecessary. The concerned Court, on the complaint, takes
32
cognizance of the offence by a detailed order. The order reads as
follows:
"11. Point No.1: The complainant is alleging that the
accused persons have committed the offences punishable under
section 468, 464, 465, 471, 409, 420 and 120(b) of IPC as
averred in the complaint, which is narrated above. On perusal of
the complaint averments and also the documents produced
along with the complaint, it goes to show that the complainant
has complied with the directions given by the Hon'ble Apex
Court in Priyanka Srivastava's Case. The complainant has
lodged a complaint before the Jurisdictional Police Station, but
no action was taken. The complainant has also lodged a
compliant in this regard to the Higher Authorities also, but no
action is taken in respect of the complaint lodged by the
complainant. The complainant has also filed his affidavit stating
that the averments made in the complaint are true and correct.
As such, the complainant has filed this Private Complaint with
the prayer of refer the complaint under 156(3) of Cr.P.C for
investigation.
12. The complainant has produced documents in
compliance of section 154 of Cr.P.C and also filed Affidavit in
that regard. The complainant has sought to refer this case to
the Jurisdictional Police for investigation. As such, at this pre-
cognizance stage, bar under section 197 Cr.P.C., will not come
into play And, this court is guided by the decision of the
Hon'ble High Court of Karnataka, in Crl.P.No.5659/2021
between Abharam T.J., Vs. B.S. Yediyurappa, Dated:
07.09.2022. I feel this is a fit case to refer the complaint for
investigation under section 156(3) of Cr.P.C. As such, Point
No.01 is answered in the AFFIRMATIVE.
13. Point No.2: The counsel for the complainant has also
pressed to pass necessary orders on the Second Prayer made in
the complaint. The complainant has prayed to initiate action
against the Police Inspector, Belur Police Station, Belur Taluk,
Hassan District. He has also referred to the decision of the
Hon'ble Apex Court, i.e., Lalita Kumari Vs Government of
U.P and Ors. I have gone through the said decision. This court
is constituted as a Special Court to deal with the cases filed
33
against the MPs/MLAs in the State of Karnataka. The Second
Prayer sought in the complaint is an independent case in which
any MPs/MLAs are not involved. The said prayer is sought to
initiate action against the Police Officer who did not register the
case based on the complaint lodged by the complainant before
the Police Station. As such, this court will not get the jurisdiction
to initiate any action against the said Police Officer in this case,
as the same will be an independent case. If the complainant is
aggrieved by the action of the said Police Officer and he may
proceed against him separately before the Jurisdictional Court.
Accordingly, I answer this Point No.2 in the NEGATIVE.
14. Point No.3: For the reasons stated above, I proceed
to pass the following:
ORDER
This complaint is referred to SHO of Belur Police Station,
Belur Taluk, Hassan District, under section 156(3) of Cr.P.C for
investigation.”
Taking of cognizance and issuance of summons has driven the
petitioners to this Court in the subject petition.
10. If what is noticed/quoted hereinabove is considered, what
would unmistakably emerge is, that persons who were not even
from Belur Taluk and who had produced fake and bogus certificates,
the Samithi has granted the lands or regularized those lands as the
case would be. The report of the Tahsildar forwarded to the
Assistant Commissioner and the detailed report of the Assistant
Commissioner to the Deputy Commissioner all of which would
34
unmistakably, albeit prima facie, lead to a conclusion that
Government lands are illegally bartered away, as if they are the
personal properties of members of the Samithi and the office is
treated as their personal fiefdom. It is not one, 10 or 100
acres; the lands that are bartered away are 2750 acres
which then valued at `750/- crores. If the petition is
entertained and proceedings are closed against the petitioners, it
would be putting a premium on the illegality committed by the
Chairman and Members of the Samithi and accepting bartering
away of Government lands as if they are self-acquired private
properties of the Chairman and members of the Samithi. This is
sans countenance, by any canon of law. This matter would require
investigation in the least, as it involves maze of facts. The issue
regarding sanction of public servants need not be gone into, as no
public servant is before the Court.
11. It becomes apposite to refer to the judgment of the Apex
Court in the case of KAPTAN SINGH v. STATE OF UTTAR
PRADESH1, wherein, it has been held as follows:
1
(2021) 9 SCC 35
35“9.1. At the outset, it is required to be noted that in the
present case the High Court in exercise of powers under
Section 482 CrPC has quashed the criminal proceedings for the
offences under Sections 147, 148, 149, 406, 329 and 386 IPC.
It is required to be noted that when the High Court in exercise
of powers under Section 482 CrPC quashed the criminal
proceedings, by the time the investigating officer after
recording the statement of the witnesses, statement of the
complainant and collecting the evidence from the incident
place and after taking statement of the independent witnesses
and even statement of the accused persons, has filed the
charge-sheet before the learned Magistrate for the offences
under Sections 147, 148, 149, 406, 329 and 386 IPC and even
the learned Magistrate also took the cognizance. From the
impugned judgment and order [Radhey Shyam Gupta v. State
of U.P., 2020 SCC OnLine All 914] passed by the High Court, it
does not appear that the High Court took into consideration
the material collected during the investigation/inquiry and
even the statements recorded. If the petition under Section
482 CrPC was at the stage of FIR in that case the
allegations in the FIR/complaint only are required to be
considered and whether a cognizable offence is
disclosed or not is required to be considered. However,
thereafter when the statements are recorded, evidence
is collected and the charge-sheet is filed after
conclusion of the investigation/inquiry the matter
stands on different footing and the Court is required to
consider the material/evidence collected during the
investigation. Even at this stage also, as observed and held
by this Court in a catena of decisions, the High Court is not
required to go into the merits of the allegations and/or enter
into the merits of the case as if the High Court is exercising
the appellate jurisdiction and/or conducting the trial. As held
by this Court in Dineshbhai Chandubhai Patel [Dineshbhai
Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 :
(2018) 1 SCC (Cri) 683] in order to examine as to whether
factual contents of FIR disclose any cognizable offence or not,
the High Court cannot act like the investigating agency nor can
exercise the powers like an appellate court. It is further
observed and held that that question is required to be
examined keeping in view, the contents of FIR and prima facie
material, if any, requiring no proof. At such stage, the High
Court cannot appreciate evidence nor can it draw its
36own inferences from contents of FIR and material relied
on. It is further observed it is more so, when the
material relied on is disputed. It is further observed that
in such a situation, it becomes the job of the
investigating authority at such stage to probe and then
of the court to examine questions once the charge-sheet
is filed along with such material as to how far and to
what extent reliance can be placed on such material.
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram
Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 :
(2020) 3 SCC (Cri) 672] after considering the decisions of this
Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this
Court that exercise of powers under Section 482 CrPC to
quash the proceedings is an exception and not a rule. It is
further observed that inherent jurisdiction under
Section 482 CrPC though wide is to be exercised
sparingly, carefully and with caution, only when such
exercise is justified by tests specifically laid down in the
section itself. It is further observed that appreciation of
evidence is not permissible at the stage of quashing of
proceedings in exercise of powers under Section 482
CrPC. Similar view has been expressed by this Court in Arvind
Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1
SCC (Cri) 94] , Managipet [State of Telangana v. Managipet,
(2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and
in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1
SCC (Cri) 173] , referred to hereinabove.
9.3. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand, we are of
the opinion that the High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers under
Section 482 CrPC.
10. The High Court has failed to appreciate and consider
the fact that there are very serious triable issues/allegations
which are required to be gone into and considered at the time
of trial. The High Court has lost sight of crucial aspects which
have emerged during the course of the investigation. The High
Court has failed to appreciate and consider the fact that the
37
document i.e. a joint notarised affidavit of Mamta Gupta
Accused 2 and Munni Devi under which according to Accused 2
Ms Mamta Gupta, Rs 25 lakhs was paid and the possession
was transferred to her itself is seriously disputed. It is required
to be noted that in the registered agreement to sell dated 27-
10-2010, the sale consideration is stated to be Rs 25 lakhs
and with no reference to payment of Rs 25 lakhs to Ms Munni
Devi and no reference to handing over the possession.
However, in the joint notarised affidavit of the same date i.e.
27-10-2010 sale consideration is stated to be Rs 35 lakhs out
of which Rs 25 lakhs is alleged to have been paid and there is
a reference to transfer of possession to Accused 2. Whether Rs
25 lakhs has been paid or not the accused have to establish
during the trial, because the accused are relying upon the said
document and payment of Rs 25 lakhs as mentioned in the
joint notarised affidavit dated 27-10-2010. It is also required
to be considered that the first agreement to sell in which Rs 25
lakhs is stated to be sale consideration and there is reference
to the payment of Rs 10 lakhs by cheques. It is a registered
document. The aforesaid are all triable issues/allegations
which are required to be considered at the time of trial. The
High Court has failed to notice and/or consider the material
collected during the investigation.
11. Now so far as the finding recorded by the High Court
that no case is made out for the offence under Section 406 IPC
is concerned, it is to be noted that the High Court itself has
noted that the joint notarised affidavit dated 27-10-2010 is
seriously disputed, however as per the High Court the same is
required to be considered in the civil proceedings. There the
High Court has committed an error. Even the High Court has
failed to notice that another FIR has been lodged against the
accused for the offences under Sections 467, 468, 471 IPC
with respect to the said alleged joint notarised affidavit. Even
according to the accused the possession was handed over to
them. However, when the payment of Rs 25 lakhs as
mentioned in the joint notarised affidavit is seriously disputed
and even one of the cheques out of 5 cheques each of Rs 2
lakhs was dishonoured and according to the accused they were
handed over the possession (which is seriously disputed) it can
be said to be entrustment of property. Therefore, at this stage
to opine that no case is made out for the offence under
38
Section 406 IPC is premature and the aforesaid aspect is to be
considered during trial. It is also required to be noted that the
first suit was filed by Munni Devi and thereafter subsequent
suit came to be filed by the accused and that too for
permanent injunction only. Nothing is on record that any suit
for specific performance has been filed. Be that as it may, all
the aforesaid aspects are required to be considered at the time
of trial only.
12. Therefore, the High Court has grossly erred in
quashing the criminal proceedings by entering into the
merits of the allegations as if the High Court was
exercising the appellate jurisdiction and/or conducting
the trial. The High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers
under Section 482 CrPC.
13. Even the High Court has erred in observing that
original complaint has no locus. The aforesaid observation is
made on the premise that the complainant has not placed on
record the power of attorney along with the counter filed
before the High Court. However, when it is specifically stated
in the FIR that Munni Devi has executed the power of attorney
and thereafter the investigating officer has conducted the
investigation and has recorded the statement of the
complainant, accused and the independent witnesses,
thereafter whether the complainant is having the power of
attorney or not is to be considered during trial.
14. In view of the above and for the reasons stated
above, the impugned judgment and order [Radhey Shyam
Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by
the High Court quashing the criminal proceedings in exercise
of powers under Section 482 CrPC is unsustainable and the
same deserves to be quashed and set aside and is accordingly
quashed and set aside. Now, the trial is to be conducted and
proceeded further in accordance with law and on its own
merits. It is made clear that the observations made by this
Court in the present proceedings are to be treated to be
confined to the proceedings under Section 482 CrPC only and
the trial court to decide the case in accordance with law and
39
on its own merits and on the basis of the evidence to be laid
and without being influenced by any of the observations made
by us hereinabove. The present appeal is accordingly allowed.”
(Emphasis supplied)
In view of the preceding analysis, I hold that Bagair Hukum
Committee has acted Bagair Kanoon, albeit, prima facie.
12. Finding no merit in the petition, the petition stands
rejected.
It is made clear that the observations made in the course of
the order are only for the purpose of consideration of the case of
petitioners under Section 482 of Cr.P.C. and the same shall not bind
or influence the proceedings pending against them.
Sd/-
(M. NAGAPRASANNA)
JUDGE
nvj
CT:SS