Appeal
Appeal against the refusal of quashing FIR
1. 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, 19731 seeking quashing of the First Information Report dated 14th May, 2016 and subsequent proceedings in Crime No.241 of 2016, was refused
Facts
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.22 vide agreement to sell dated 17 th 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 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).
Quash order of Hon’ble High Court
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 of the impugned judgment and order. For ease of reference, the same is extracted hereinbelow :-
“[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.”
Whether charges attracted prima facie against him
8. The Madhya Pradesh Griha Nirman Mandal 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.
Section 197 Cr.P.C
Scope of section 197 Cr.P.C
The scope and ambit of Section 197 Cr.P.C. was succinctly recorded in Shambhoo Nath Misra v. 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 v. Rakesh Sharma & Anr [(2023) 8 SCC 711] The application of the section is referred to thus:
“41. Sub-section (1) of Section 197CrPC 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 197CrPC is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant.”
The appellant’s official duty would be in furtherance of the act and covered with section 197 Cr.P.C r/w 83 M.P Housing Board Act 1972
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.
Cheating
12. The ingredients of Section 420 IPC as described in Vijay Kumar Ghai v. 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.
Ingredients to establish cheating
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.”
Nothing on record suggests a prima facie met any ingredients against the appellant
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 v. State [(2019) 17 SCC 451], records as follows: –
“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.
Conclusion
Appeal allowed: case quashed
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.
Party
Dinesh Kumar Mathur … Appellant(S) versus State of M.P. & Anr. …Respondent(S) – Criminal Appeal No. 4915 Of 2024 (Arising out of Special Leave Petition(Crl.) No.5248/2017) – 2025 INSC 16 – 2nd January, 2025.
