2025 INSC 16
SUPREME COURT OF INDIA
(HONBLE C.T.
RAVIKUMAR AND SANJAY KAROL, JJ.)
DINESH KUMAR MATHUR
Petitioner
VERSUS
STATE OF M.P. AND
OTHERS
Respondent
Criminal
Appeal No. 4915 of 2024 (Arising out of Special Leave Petition(Crl.) No.5248 of
2017)-Decided on 02-01-2025
Criminal, Quashing
Criminal Procedure
Code, 1973, Section 197, 482 - Penal Code, 1860, Sections 419, 420, 467, 468,
471 and 120B r/w 34 - Madhya Pradesh Griha Nirman Mandal Adhiniyam, 1972,
Section 83 Quashing of FIR Cheating - Public servant - Protection of action taken in good
faith Prosecution of public servant - One A, who has been made co-accused
in the complaint, has allegedly, in connivance with other persons including
members of the Housing Board, forged the Power of Attorney of the original
seller in his favour and got the said property registered in his own name
- The appellant is an official of the
Housing Board and it is said that the act perpetrated by A was with his aid
and assistance Held that the appellant's official duty would be in
furtherance of the act and, therefore, would be covered by wordings of Section
83 of the Adhiniyam, 1972 - There is no inkling in the slightest, apart from
alleging connivance to suggest that the appellant had played a role, in
dereliction of his duty - Nothing on record to suggest, even prima facie, that
any of the ingredients of Section 420 IPC are met in the case of the present
appellant - No intent can be hinted to, where the appellant had willfully, with
the intent to defraud, acted upon the allegedly forged Power of Attorney -
Neither has anything been brought in the chargesheet upon completion of the
investigation to show that the requirements of Section 120-B have been met -
Nor that the appellant had any information or knowledge about the subject Power
of Attorney being forged - Sections when put into a chargesheet, cannot be
based on bald assertions of connivance, there must be a substance which is
entirely lacking in the present case -. If the intent is on the face of it is
absent qua one of the offences in the same transaction, it is absent in respect
of the other offence as well, viz., Section 467, 468 - Impugned judgment passed
by the High Court liable to be quashed and set aside - All proceedings arising
from the subject FIR and subsequent proceedings stand closed.
(Para
11 to 13)
JUDGMENT
Sanjay Karol, J. - Impugned in this
appeal is the judgment and order dated 28th April, 2017 of the High Court of
Madhya Pradesh, Jabalpur (Bench at Indore) passed in Misc. Criminal Case No.
12383 of 2016, whereby a petition under Section 482 of the Code of Criminal
Procedure, 1973[For short, Cr.P.C.]
seeking quashing of the First Information Report dated 14th May, 2016 and
subsequent proceedings in Crime No. 241 of 2016, was refused.
2.
The facts, as emanating from the record, are that: -
2.1 House No.D-90,
Dindayal Nagar, Ratlam, was allotted on hire purchase basis to one Gopaldas s/o
Narayandas, vide agreement between him and the Madhya Pradesh State Housing
Board on 10th January, 1991. He sold the said property, and handed over
possession thereof, to one Mangi Bai upon receipt of Rs. 12,500/- as
consideration. It was agreed inter se these parties that upon being granted the
registration of the house, Gopaldas would execute a sale deed in favour of
Mangi Bai. An agreement to sell to such effect was drawn up on 11th January,
1991.
2.2
Mangi Bai, subsequently for a consideration of Rs. 19,000/- sold the said
property to respondent No.2[[Hereinafter,
the 'complainant']]vide agreement to sell dated 17th December, 1994.
2.3
One Ashok Dayya, who has been made co-accused in the complaint, has allegedly,
in connivance with other persons namely, Ramesh Sharma, Jitendra Sharma,
Narendra @ Pappu Sharma and members of the Housing Board, forged the Power of
Attorney of the original seller - Gopaldas in his favour and got the said property
registered in his own name.
2.4
The appellant herein is an official of the Housing Board and it is said that
the act perpetrated by Ashok was with his aid and assistance. It is against
this transfer of property that the subject FIR was lodged, and after
investigation a chargesheet filed under Sections 419, 420, 467, 468, 471 and
120B r/w 34, Indian Penal Code 1860[[For
short 'IPC']]against five persons, namely, Ashok (A-1), Ramesh Chand (A-2),
Nanalal (A-3), Krishna Singh (A-4) and Dinesh Kumar D.K. (A-5).
3.
The appellant, aggrieved by the above action, preferred the petition for
quashing before the High Court. The reasoning for the High Court refusing such
prayer is found in paragraph 7 of the impugned judgment and order. For ease of
reference, the same is extracted herein below :-
'[7] From the
charge-sheet it is clear that police found prima facie case against the
applicant and filed charge-sheet against him. In the charge-sheet it is clearly
mentioned that applicant without inquiring whether alleged power of attorney
was executed by Gopaldas or not in connivance with other co-accused for getting
illegal profit on the basis of forged power of attorney executed sale deed of
suit house in favour of co-accused Ashok Dayya. In the statement of Rajesh, Nilesh,
Deepak, Ashish, Mangibai, Nemubai @ Nirmlabai, Manjubai and Gopaldas it is
mentioned that co-accused Ashok Dayya in connivance with employee and officers
of Housing Board got sale deed of suit house executed in his favour on the
basis of forged power of attorney of Gopaldas. So prima facie It appears that
applicant was also involved in the said crime.
Whether applicant was
involved in conspiracy or he bonafidely without knowing the fact that power of
attorney produced by co-accused Ashok Dayya is forged executed the sale deed of
suit house in favour of co-accused Ashok Dayya is a matter of fact which
requires evidence to decide. Prima facie involvement of applicant in the crime
appears from the charge-sheet and case dairy statement of witnesses, so no
question of quashing of FIR arises.'
4.
Before proceeding further, it is important to note that the complainant filed a
civil suit against five persons, namely, Gopaldas, Mangi Bai, Nirmlabai, Ashok
Kumar and Manager Housing Board, Housing and Infrastructure Development Board
Division, Ratlam, M.P. bearing No.99A/2014 on 5th May, 2014 which was on the
file of the learned Vth Civil Judge, Grade-2, Ratlam, contending inter alia as
follows :-
'4. That after the
execution of the agreement to sell by the defendant No.2 and 3 in favour of the
defendant No.1 on 17.12.1994 in respect of the house No.90, situated in the
Deendayal Nagar on receipt of the amount of Rs. 19,000/- (Nineteen Thousand,
the defendant No.2 and 3, found that it was agreed that after the registration
of the sale deed to be executed in favour of defendant No.2 and 3, the
defendant No.1 executed a general power of attorney in favour of the plaintiff
on 27.01.1995. According to it, by making the payment of the money which is due
to the defendant No.5, the defendant No.1 informed the defendant No.1 & 5
that the registry of the sale deed may be executed properly in favour of the
plaintiff in respect of the House No.90, Deendayal Nagar for which today the
defendant No.1, 2 and 3 have also indicated their consent in writing in the
presence of the defendant No.5.'
It was prayed therein
that the defendants, namely, Gopaldas, Mangi Bai and the Manager of the Housing
Board among others should, in compliance with the agreement dated 17th
December, 1994, get the sale deed registered in respect of the property, the
subject matter of dispute in favour of the plaintiff, directly; and further
that an injunction be issued against the defendants to not, either personally
or through any other person, transfer the disputed property to a third party.
5.
The learned Civil Judge by the judgment dated 5th December, 2023 in the suit
for specific performance and declaration of the sale deed dated 30th January,
2014 as 'illegal and zero' found that none of the substantive issues were
proved. The suit was as such dismissed.
6.
Before us it is submitted inter alia that: -
(a) the execution of
the sale deed was reasonably connected with the official duty of the appellant
and the same was done after obtaining a legal opinion from the counsel of the
Housing Board.
(b) the impugned order
is contrary to the settled law in V.Y. Joshi & Anr. vs. State of Gujarat[[(2009) 3 SCC 78]], wherein it has been
held that in a dispute which is essentially civil in nature, a complaint/FIR
should be quashed. Observations similar in nature have been made in Mohd.
Ibrahim vs. State of Bihar[(2009) 8 SCC
751].
(c) since the act
carried out by the appellant was in connection with his official duty, any such
action would be protected by Sections 82 and 83 of the M.P. Housing Board Act,
1972, which is akin to Section 197 Cr.P.C.
(d) in view of the
finding in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana &
Anr.[ (2012) 1 SCC 656] that transfer
of immovable property by way of sale can only be by deed of conveyance duly
stamped and registered, as required by law, the claim of the complainant on the
basis of an unregistered agreement to sell and Power of Attorney would not be
entertained and investigated for no legal title accrued in his favour.
(e) there is no mens
rea on the part of the appellant and the allegations against him are entirely
unsubstantiated by record. Further, the present criminal complaint has been
instituted against the appellant after superannuation from service causing
grave injury to the reputation and mind of the appellant.
(f) two other cases,
being M.Cr.C.No.374/2017 arising out of Crime No.269/2016 by judgment dated 27th
January, 2017 and M.Cr.C.No.3650/2017 arising out of Crime No.242/2016 by
judgment dated 15th May, 2017, were decided in favour of the appellant and the
subject First Information Reports and other subsequent proceedings were
quashed.
7.
We have heard the learned counsel for the parties and perused the record. The
only point to be considered is whether the appellant as an employee of the
Housing Board had prima facie involvement in the alleged forgery and cheating
committed in connection with the property which was sought to be registered in
the name of a particular person by way of a Power of Attorney.
8.
The Madhya Pradesh Griha Nirman Mandal Adhiniyam, 1972[[Hereinafter, 'Adhiniyam, 1972]], in its Chapter VIII and onwards
describes the functions and duties of the Board. Chapter X deals with the
acquisition and disposal of land. So, the power of the Housing Board to
transfer the land to Gopaldas cannot be disputed; what is to be seen is as to
whether the ingredients of the Section under which the appellant stands
charge-sheeted are prima facie attracted against him.
9.
Prior to doing so, we must also appreciate the submission on behalf of the
appellant that his action is protected under Section 83 of the Adhiniyam, 1972.
It reads : -
'83. Protection of
action taken in good faith - No suit, prosecution or other legal proceeding
shall lie against the State Government the board or committee thereof or any
officer or servant of the State Government or the board for anything which is
in good faith done or intended to be done in pursuance of this Act, rule or
regulation or byelaw made thereunder.'
10.
As noted above, it is submitted that this provision is similar to Section 197
of Cr.P.C. It reads as under:
'197. Prosecution of
Judges and public servants.
(1) When any person
who is or was a Judge or Magistrate or a public servant not removable from his
officer save by or with the sanction of the Government, is accused of any
offence alleged to have been committed by him while acting or purporting to act
in the discharge of his official duty, no Court shall take cognizance of such
offence except with the previous sanction-
(a) .....
(b) in the case of a
person who is employed or, as the case may be, was at the time of commission of
the alleged offence employed, in connection with the affairs of a State of the
State Government :
[Provided that where
the alleged offence was committed by a person referred to in clause (b) during
the period while a Proclamation issued under clause (1) of Article 356 of the
Constitution was in force in a State, clause (b) will apply as if for the
expression "State Government" occurring therein, the expression
"Central Government" were substituted.
[Explanation. - For
the removal of doubts it is hereby declared that no sanction shall be required
in case of a public servant accused of any offence alleged to have been
committed under section 166A, section 166B, section 354, section 354A, section
354B, section 354C, section 354D, section 370, section 375, section 376,
[section 376A, section 376AB, section 376C, section 376D, section 376DA,
section 376DB,] or section 509 of the Indian Penal Code.]
(2) ...
(3) The State
Government may, by notification, direct that the provisions of sub-section (2)
shall apply to such class or category of the members of the Forces charged with
the maintenance of public order as may be specified therein, wherever they may
be serving, and thereupon the provisions of that sub-section will apply as if
for the expression "Central Government" occurring therein the
expression "State Government" were substituted.
(3-A) ...
(3-B) ...
(4) The Central
Government or the State Government, as the case may be, may determine the
person by whom, the manner in which, and the offence or offences for which, the
prosecution of such Judge, Magistrate or public servant is to be conducted, and
may specify the Court before which the trial is to be held.'
In Manohar Nath Kaul
vs. State of Jammu & Kashmir[[(1983)
3 SCC 429]] this Court considered earlier precedents on the application of
this Section in the following terms.
'9. In B. Saha vs.
M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939 : (1980) 1 SCR 111 : 1979
Cri LJ 1367] , a three-Judge Bench dealt with the same submission advanced on
behalf of certain officers of the Customs Department convicted for offences
punishable under Sections 120-B, 166 and 409 of the Penal Code. Sarkaria, J.
speaking for the court observed: [SCC para 18, p. 185: SCC (Cri) p. 946]
'In sum, the sine qua
non for the applicability of this section is that the offence charged, be it
one of commission or omission, must be one which has been committed by the
public servant either in his official capacity or under colour of the office
held by him.'
The rule in Amrik Singh
case [(1970) 2 SCC 56 : 1970 SCC (Cri) 292 : AIR 1970 SC 1661 : (1971) 1 SCR
317 : 1970 Cri LJ 1401] was quoted with approval. It was observed: [SCC para
17, pp. 184-85: SCC (Cri) pp. 945-46]
'The words 'any
offence alleged to have been committed by him while acting or purporting to act
in the discharge of his official duty' employed in Section 197(1) of the Code,
are capable of a narrow as well as a wide interpretation. If these words are
construed too narrowly, the section will be rendered altogether sterile, for,
'it is no part of an official duty to commit an offence, and never can be'. In
the wider sense, these words will take under their umbrella every act
constituting an offence, committed in the course of the same transaction in
which the official duty is performed or purports to be performed. The right
approach to the import of these words lies between these two extremes. While on
the one hand, it is not every offence committed by a public servant while
engaged in the performance of his official duty, which is entitled to the
protection of Section 197(1), an act constituting an offence, directly and
reasonably connected with his official duty will require sanction for
prosecution under the said provision.'
(Emphasis
supplied)
We are of the definite
view that the rule quoted above from Amrik Singh case [(1970) 2 SCC 56 : 1970
SCC (Cri) 292 : AIR 1970 SC 1661 : (1971) 1 SCR 317 : 1970 Cri LJ 1401]
correctly lays down the legal proposition as to invocability of the protection
under Section 197(1) of the Code. The observations of Imam, J. in Satwant Singh
case [AIR 1955 SC 309 : (1955) 1 SCR 1302 :1955 Cri LJ 865] that there could be
no hesitation in saying that where a public servant commits the offence of
cheating or abets another so to cheat, the offence committed by him is not one
while he is acting or purporting to act in the discharge of his official duty,
as such offence has no necessary connection between it and the performance of
the duties of a public servant, the official status furnishing only the
occasion or opportunity for the commission of the offences, is also the correct
exposition of the law.'
The scope and ambit of
Section 197 Cr.P.C. was succinctly recorded in Shambhoo Nath Misra vs. State of
U.P. & Ors.[ [(1997) 5 SCC 326]]:
'4. Section 197(1)
postulates that 'when any person who is ... a public servant not removable from
his office, save by or with the sanction of the Government, is accused of any
offence alleged to have been committed by him, while acting or purporting to
act in the discharge of his official duty, no court shall take cognizance of
such offence except with the previous sanction' of the appropriate
Government/authority. The essential requirement postulated for the sanction to
prosecute the public servant is that the offence alleged against the public
servant must have been done while acting or purporting to act in the discharge
of his official duties. In such a situation, it postulates that the public
servant's act is in furtherance of the performance of his official duties. If
the act/omission is integral to the performance of public duty, the public
servant is entitled to the protection under Section 197(1) of CrPC. Without the
previous sanction, the complaint/charge against him for the alleged offence
cannot be proceeded with in the trial. The sanction of the appropriate
Government or competent authority would be necessary to protect a public
servant from needless harassment or prosecution. The protection of sanction is
an assurance to an honest and sincere officer to perform his public duty
honestly and to the best of his ability. The threat of prosecution demoralises
the honest officer. The requirement of the sanction by competent authority or
appropriate Government is an assurance and protection to the honest officer who
does his official duty to further public interest. However, performance of
official duty under colour of public authority cannot be camouflaged to commit
crime. Public duty may provide him an opportunity to commit crime. The Court to
proceed further in the trial or the enquiry, as the case may be, applies its
mind and records a finding that the crime and the official duty are not
integrally connected.'
Of more recent vintage
is the judgment of this Court in A. Sreenivasa Reddy vs. Rakesh Sharma &
Anr.[ [(2023) 8 SCC 711]] The
application of the section is referred to thus:
'41. Sub-section (1)
of Section 197 CrPC shows that sanction for prosecution is required where any
person who is or was a Judge or Magistrate or a public servant not removable from
his office save by or with the sanction of the Government is accused of any
offence alleged Norhto have been committed by him while acting or purporting to
act in discharge of his official duty. Article 311 of the Constitution lays
down that no person, who is a member of a civil service of the Union or State
or holds a civil post under the Union or State, shall be removed by an
authority subordinate to that by which he was appointed. It, therefore, follows
that protection of sub-section (1) of Section 197 CrPC is available only to
such public servants whose appointing authority is the Central Government or
the State Government and not to every public servant.'
11.
Having considered the application of Section 197, as above, we are of the view
that the submission of the appellant bears merit and, therefore, deserves to be
accepted, for the appellant's official duty would be in furtherance of the act
and, therefore, would be covered by wordings of Section 83 of the Adhiniyam,
1972. There is no inkling in the slightest, apart from alleging connivance to
suggest that the appellant had played a role, in dereliction of his duty. That
apart, there are further reasons as to why the High Court appears to have erred
in refusing to quash the subject criminal proceedings. They are discussed in
the subsequent paragraphs.
12.
The ingredients of Section 420 IPC as described in Vijay Kumar Ghai vs. State
of W.B.[ (2022) 7 SCC 124] are:
'34. Section 420 IPC
is a serious form of cheating that includes inducement (to lead or move someone
to happen) in terms of delivery of property as well as valuable securities.
This section is also applicable to matters where the destruction of the
property is caused by the way of cheating or inducement. Punishment for
cheating is provided under this section which may extend to 7 years and also
makes the person liable to fine.
35. To establish the
offence of cheating in inducing the delivery of property, the following
ingredients need to be proved:
(i) The representation
made by the person was false.
(ii) The accused had
prior knowledge that the representation he made was false.
(iii) The accused made
false representation with dishonest intention in order to deceive the person to
whom it was made.
(iv) The act where the
accused induced the person to deliver the property or to perform or to abstain
from any act which the person would have not done or had otherwise committed.'
There is nothing on
record to suggest, even prima facie, that any of the abovesaid ingredients are
met in the case of the present appellant. No intent can be hinted to, where the
appellant had willfully, with the intent to defraud, acted upon the allegedly
forged Power of Attorney. Neither has anything been brought in the chargesheet
upon completion of the investigation to show that the requirements of Section
120-B have been met. Nor that the appellant had any information or knowledge
about the subject Power of Attorney being forged. For the ingredients of this
section to be established, Bilal Hajar vs. State[(2019) 17 SCC 451], records as follows: -
'31. The expression
'criminal conspiracy' was aptly explained by this Court in E.G. Barsay v. State
of Bombay [E.G. Barsay vs. State of Bombay, (1962) 2 SCR 195 : AIR 1961 SC 1762
: (1961) 2 Cri LJ 828] . The learned Judge Subba Rao, J. (as his Lordship then
was and later became CJI) speaking for the Bench in his distinctive style of
writing said : (AIR p. 1778, para 31)
'31. ... The gist of
the offence is an agreement to break the law. The parties to such an agreement
will be guilty of criminal conspiracy, though the illegal act agreed to be done
has not been done. So too, it is not an ingredient of the offence that all the
parties should agree to do a single illegal act. It may comprise the commission
of a number of acts.'
32. Therefore, in
order to constitute a conspiracy, meeting of minds of two or more persons to do
an illegal act or an act by illegal means is a must. In other words, it is sine
qua non for invoking the plea of conspiracy against the accused. However, it is
not necessary that all the conspirators must know each and every detail of the
conspiracy which is being hatched and nor is it necessary to prove their active
part/role in such meeting.'
Sections when put into
a chargesheet, cannot be based on bald assertions of connivance, there must be
a substance which is entirely lacking in the present case.
13.
If the intent is on the face of it is absent qua one of the offences in the
same transaction, it is absent in respect of the other offence as well, viz.,
Section 467, 468.
14.
When examining a prayer for quashing, what is to be considered by this Court
has been laid down most notably in State of Haryana vs. Bhajan Lal[(1992) Supp (1) 335].
The principle as
applicable in this case is:
'102...
(1) Where the
allegations made in the first information report or the complaint, even if they
are taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.
(2) Where the
allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2) of the Code...'
As the discussion in
the previous paragraphs would evidence, no intention whatsoever could be
attributed to the present appellant, and in the absence of any intention
attributable to him, no criminal offence can be made out. Further, the FIR and
other materials are unable to disclose any cognizable offence, and therefore,
would fall into the first and second criterion discussed in the landmark
judgment.
15.
In view of the aforesaid, the impugned judgment passed by the High Court of
Madhya Pradesh, Jabalpur (Bench at Indore) dated 28th April, 2017 passed in
Misc. Criminal Case No.12383 of 2016, is quashed and set aside. The appeal is
allowed. All proceedings arising from the subject FIR and subsequent
proceedings in Crime No.241 of 2016 stand closed.
Pending
application(s), if any, shall stand disposed of.
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