Crl.O.P
These Criminal Original Petitions have been filed calling for the records in Cr.No.9 of 2020 on the file of the Inspector of Police, District Crime Branch, Ariyalur District and to quash the same.
Facts
Dispute revolves around the second will amending the first one with respect to the impugned property
2. The learned counsel for the petitioners submitted that the subject property was originally owned by one Venkatachalam. He had two daughters viz, Papammal and Kaveriammal and no male issue. He died on 09.08.2006. During his lifetime, he executed a Will, dated 08.06.2005 in favour of his two daughters in respect of his properties. The second respondent/Defacto complainant is only the brother’s son of the said Venkatachalam. Even while he was alive, a partition between two daughters happened and accordingly they have been enjoying their respective shares and it is also established in the suit in O.S.No.77 of 2008. Accordingly, the revenue records were mutated and patta was also issued in respect of their respective shares. However, it was shown that during the lifetime of their father, he had executed a Will in favour of the second respondent in respect of the subject property and the same was challenged before the District Munsif Court, Jayamkondam in O.S.No.316 of 2018 in which the second respondent is also one of the parties. Thereafter, the second respondent lodged a complaint before the Land Grabbing, District Crime Branch at Ariyalur. Since the second respondent has no proper particulars to change the patta in favour of him in respect of the subject property, the said complaint was closed by the Land Grabbing, District Crime Branch at Ariyalur. Without considering the facts and circumstances, the learned Magistrate issued direction under Section 156(3) of Cr.P.C to register an FIR and as such the first respondent registered the present impugned FIR.
Analysing
5. Heard Mr.R.Subramanian, learned counsel appearing for the petitioners, Mr.A.Gopinath, learned Government Advocate (Crl.Side) appearing for the first respondent and Mr. Ramprakash Rajagopal, learned counsel appearing for the second respondent.
FIR filed against government servants for changing the name in patta illegally to a third party to property
6. A perusal of FIR revealed that the entire allegations made around the Will executed by one Venkatachalam, dated 08.06.2005 pertaining to the property comprised in Survey No.353-8 to an extent of 0.02.00 Ares 0.05 cents bequeathing the same in favour of the petitioner in Crl.OP.No.2721 of 2021 and the same was registered vide Document No.11BK3 of 2005 on the file of the second accused. There is a special clause in the aforesaid registered Will dated 08.06.2005 in which the testator had specifically mentioned that except the rightful enjoyment of the property till her death, the aforesaid property shall not be encumbered, mortgaged, gifted or sold to anyone by her. The relevant paragraph is extracted below:
“vernacular language”
Thus, it is clear that as per the Will dated 08.06.2005, the subject property was only for the life estate of the petitioner in Crl.OP.No.2721 of 2021. Again the said Venkatachalam executed another such Will dated 06.06.2006 registered vide Document No.14 of 2006, thereby bequeathing the very same property in favour of his elder daughter viz., the said Pappammal and to the second respondent herein.
7. Accordingly, the said subject property shall be first inherited by his elder daughter and after her demise, the said property goes to the second respondent herein. The said Venkatachalam is none other than the paternal uncle of the second respondent herein, who died on 09.08.2006, leaving behind his successors viz, Pappammal, Kaveriammal and the second respondent herein for the subject property. After the demise of the said Pappammal, the second respondent inherited the subject property and applied for mutation of revenue records in his favour. Accordingly, he was issued patta in Patta No.6806. However, for the very same property, the petitioner in Crl.O.P.No.2721 of 2021, conspired with other official accused and obtained patta, suppressing the last Will executed in favour of the said Pappammal and the second respondent herein. After obtaining the patta, she also executed a settlement deed in favour of her grand son registered vide Document No.2949 dated 10.12.2018. Therefore, the second respondent made out a prima facie case to register an FIR as against the accused persons. Further, the third accused namely the Village Administrative Officer, who is the petitioner in Crl.O.P.No.2724 of 2021, raised subsequent ground that without obtaining any sanction as contemplated under Section 197 of Cr.P.C, the first respondent cannot prosecute him.
Section 197 Cr.P.C: Public servants conspired and recommended for issuance of patta in favour of some other person other than the property owner is not official duty
8. It is settled law that the Public servants while they are discharging their official duty, no Court shall take cognizance of any offence except with the provisional sanction. Whereas, in the case of hand, the petitioner conspired with all the other accused persons and recommended for issuance of patta in favour of the petitioner in Crl.O.P.No.2721 of 2021.
9. Therefore, the grounds raised by the learned counsel for petitioners are not applicable and the petitioners are not entitled for any remedy as contemplated under Section 197 of Cr.P.C.
10. It is relevant to rely upon the judgment of the Hon’ble Supreme Court of India passed in Crl.A.No.255 of 2019 dated 12.02.2019 in the case of Sau. Kamal Shivaji Pokarnekar vs. the State of Maharashtra & ors., as follows:-
“4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.
5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients f the offence are disclosed, there would be no justification for the High Court to interfere.
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9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.”
Judgments Involved
Sau. Kamal Shivaji Pokarnekar vs. The State of Maharashtra & Ors – Citation: Crl.A.No.255 of 2019 -Date: 12.02.2019
Acts and Sections Involved
Code of Criminal Procedure (Cr.P.C.)
Section 482: Power of High Court to quash proceedings.
Section 156(3): Power of Magistrate to order investigation.
Section 197: Provisions regarding the prosecution of public servants.
Indian Penal Code (IPC)
Section 120B: Punishment for criminal conspiracy.
Section 420: Punishment for cheating.
Section 464: Making a false document.
Section 465: Punishment for forgery.
Section 468: Forgery for the purpose of cheating.
Section 471: Using as genuine a forged document.
Section 166A: Public servant disobeying law, with intent to cause injury to any person.
Party
Kaveriammal vs. The Inspector of Police – Crl.O.P.Nos.2721 and 2724 of 2021 – 25.08.2022 – The Hon’ble Mr. Justice G.K. Ilanthiraiyan
