TMI Blog2017 (2) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the technical map, area was shown 80,000 Sq. ft. dishonestly benefiting Kishan Singh Rawat. Special Judge had observed that final adjudication of charge cannot be made unless oral and documentary evidence are received. The High Court has not adverted to the technical map which mentions 80,000 Sq. Ft. and without adverting to that allegation, has erroneously observed that there is no allegation which may come within the meaning of 13 (1) (d) read with 13(2) of the Act. Both chargesheet and order of the learned Special Judge have specifically noted the allegations, which clearly makes out an offence under Section 13(1)(d) and 13(2) of Prevention and Corruption Act, 1988 and Section 120B I.P.C. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s cheque of ₹ 1,75,000/- dated 23.4.1998 and the quarry licence for 4.95 hectare (30 bigha and 12 biswas) was prepared in the name of Smt. Sushma Devi Dhakad and Shri Manoj Kumar Sandhya on 06.05.1998. On noticing that the quarry licence issued on 06.05.1998 contained various cuttings, she contacted Fatehkaran Mehdu and handed him the licence for issue of fresh licence. Shri Mehdu after taking all papers from Smt. Sushma Devi did not issue her a fresh licence, whereas, Smt. Sushma Devi had started mining operations. On 18.07.1998 one Shri K. K. Boda, inspected the area and stopped the mining activities informing Smt. Sushma Devi that no quarry licence was issued in her favour. On 11.08.1998, Mining Engineer Fatehkaran Mehdu directed Smt. Sushma Devi to stop the mining activities; Fatehkaran Mehdu was transferred in August 1998 out of Tehsil Bigolia. 5. Aggrieved by non-issuance of quarry licence Sushma Devi filed a Writ Petition No. 166 of 1999 before the High Court of Rajasthan which was dismissed by order dated 08.03.1999 due to availability of alternate remedy of filing an appeal under the Rules 1986. Smt. Sushma Devi filed an appeal before the Appellate Authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revisional jurisdiction under Section 397 Cr.P.C. for quashing the charges framed. It was proved on the materials on record that the Respondent Mehdu had facilitated Shri Kishan Singh Rawat to carry on illegal mining by which, he obtained illegal benefits to the detriment of State of Rajasthan as well as Smt. Sushma Devi. The quarry licence granted to Sushma Devi was cancelled by Mehdu to facilitate Kishan Singh Rawat to carry on illegal mining on the plot, which was included in the quarry licence of Sushma Devi. Shri Mehdu being a public servant has committed an offence under Section 13(1)(d) read with Section 13(2). 11. Learned counsel for the Respondent, refuting the submission of appellant contends that the High Court on valid grounds has set aside the order framing the charge, since there was no allegation before the Special Judge on which, it can be said that any offence under Section 13(1)(d) read with 13(2) and 120B was made out. The allegation against Shri Mehdu that he has granted quarry licence of 80,000 Sq. ft. to Kishan Singh Rawat, was factually incorrect since Kishan Singh Rawat was sanctioned quarry licence of only 25,000 Sq. ft. It is submitted that cancellatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on quarry licence but in technical map told about according approval on plot No. 1185/124 combined so that if anytime measurement is carried out then same could be found according to technical map and according to same Shri Kishan Singh Rawat could get illegal profit. On spot Shri Kishan Singh Rawat in present time is also doing mining work on plot No. 1185/124 com. Rakba 2 bigha land and whenever question for measurement arises then he shows being approval on the basis of department's technical map whereas, in quarry lincence and files permission is accorded only to plot No. 1345/1185/124, total area of which comes to be 52472 Sq.ft whereas, according to technical map area 80,000 Sq. ft is shown. Under khatedari policy Shri Fatehkaran Mehdu only with view to cause loss to tenure holders of plot No. 1181/124 situated in south of plot No. 1185/124, called back issued quarry licence of Smt. Sushma Dhakad in name of correcting same by violating all rules, cancelled quarry licence and information in which regard was not given to licence holders. 14. There was a clear allegation in the chargesheet that quarry licence to Kishan Singh Rawat was given by Shri Mehdu in furtherance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work for years on five bigha land in place of three bigha land due to which State Government suffered loss of annual rent etc. and Kishan Singh earned unlawful profits. On account of conspiracy hatched with him and connivance forgetting Kishan Singh benefitted, it established that Shri Fatehkaran Mehdu allotted land to Kishan Singh Rawat contrary to rules or in the form of gap fat due to which the present charge sheet under section 13(1)(d) read with section 13(2) Prevention of Corruption Act, 1988 and section 120 Indian Penal Code was filed in which Kishan Singh Rawat, beneficiary was also made accused. 18. The Special Judge after considering the contention putforth by the learned counsel for the parties noted the charge that against the total area of 52,272 Sq. ft. available, Shri Mehdu has issued sanction for 80,000 Sq. ft. in the form of 'gap area' to Kishan Singh Rawat to unduly benefit him, and the same can be decided after recording oral and documentary evidence. The Special Judge found, a clear prima facie case of framing charges. It is relevant to extract the findings from Para 6 of the order. In Para 6 of the order, following has been stated: Prima fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for any other person. With regard to alleged allotment of 80,000 Sq. ft. in favour of Kishan Singh Rawat, it was held prima facie not to be correct since concerned Mining Engineer had certified that there was no allotment of 80,000 Sq. ft. by Mehdu to Kishan Singh Rawat. It is useful to extract para 8 and 9 of the judgement of the High Court which is to the following effect: 8. Having gone through the aforesaid provision and judgments cited at the bar and upon perusal of the order dated 5.5.2009, this Court does not find any allegation made by the applicant or prosecution against the present petitioner that by any corrupt or illegal means he obtained any valuable thing or pecuniary advantage either for himself or for any other person. Even alleged allotment of 80,000 Sq. ft. land in favour of petitioner no. 2 Kishan Singh was prima facie found to be incorrect since concerned Mining Engineer himself certified that there was no allotment of 80,000 sq. ft. area by the present petitioner in favour of petitioner No. 2 Kishan Singh and only allotment made was way back in 1997-98 of 25,000 sq. ft. Mere fact that application Smt. Sushma Devi had to file appeal before the competent aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, made against Shri Mehdu in the chargesheet as well as the facts noticed by the learned Special Judge. While framing the charge, the substance of the allegation against Mehdu is that he has granted a quarry licnece to Kishan Singh Rawat on three bigha area of plot No. 1345/1185/124, total area of which comes to 52,272 Sq. ft. whereas, he was sanctioned 80,000 Sq.ft. Further allegation is that Mehdu permitted Kishan Singh Rawat to indulge in unauthorised mining over the larger area than that of granted to him putting the Government as well as Smt. Sushma Devi to loss. The High Court in its order has observed that it has been certified by the present Mining Engineer that Mehdu had never sanctioned alleged 80,000 Sq.ft. in favour of Kishan Singh Rawat for which observation, the High Court based a letter dated 13.11.2009 filed as Annexure A-11 in the appeal, which was also taken on the record by the High Court. The said letter was addressed to Fatehkaran Mehdu in reply to his querry, as to whether, Kishan Singh Rawat was granted quarry licence for 80,000 Sq. ft. The answer given in the said letter dated 03.11.2009 is to the following effect: As per the information sought with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have specifically noted the allegations, which clearly makes out an offence under Section 13(1)(d) and 13(2) of Prevention and Corruption Act, 1988 and Section 120B I.P.C. 26. The scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C. has been time and again explained by this Court. Further, the scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure. 27. Now, reverting to the limit of the scope of jurisdiction under Section 397 Cr. P.C., which vests the court with the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn principles to be considered for exercise of jurisdiction under Section 397 particularly in context of quashing of charge framed under Section 228 Cr. P. C. Para 27, 27(1), (2), (3), (9), (13) are extracted as follows: 27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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