Rakesh Ranjan Prasad, J. - (1.) THIS application has been filed for quashing of the order dated 13.6.2013 passed by the Special Judge (Vigilance), Ranchi in Special Case No. 41 of 2002 (Vigilance P.S. case No. 35 of 2002) whereby and whereunder cognizance of the offences punishable under Sections 420, 423, 424, 467, 468, 469,471, 477 and 201 of the Indian Penal Code and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act has been taken against the petitioner.
(2.) BEFORE proceeding further in the matter the order which was passed on 29.1.2015 needs to be reproduced which is hereunder: "Mr. A.K. Mehta, learned counsel appearing for the petitioner, submits that it is the case of the prosecution that Plot No. 875 and 877, appertaining to Khata No. 191, situated at Mauza Kadru measuring 0.60 acres and 1.16 acres, recorded as Gair Mazarua Malik land, was belonging to the landlord A.T. Peppe. Similarly the land measuring 0.43 acres of Plot No. 878, appertaining to Khata No. 173 of Mauza Kadru, was recorded as Bakast Malik land. On 13.2.1939 ex -landlord -A.T. Peppe settled the lands to one O.J. Field and M.S. Isabel Jane Mildred by registered deed of perpetual lease. Subsequently, on 5.2.1947 Mr. O.J. Field transferred the lands to one Rev. R. Bossuyt, Director of Chhotanagpur Catholic Cooperative Credit Society by registered sale deed. Much thereafter, in the year 1983, the lands were transferred in the name of Jesus Mary and Joseph, registered Cooperative Society, by way of three registered deed of gift and also by way of registered sale deed. Thereupon, the transferees filed an application for mutating their name against the land transferred to them. On such application, Mutation Case Nos. 173, 174, 175 and 176 of the years 1987 -88 were registered and the names of the transferees were mutated. When the names of those transferees were mutated against the land, which they had purchased, inquiry was held. During inquiry, the inquiry officer raised question over the propriety and authority of a foreign national to transfer the land and at the same time, it was recorded that any transfer of the land measuring about 90 Kathas in the name of one person would be under the teeth of the Urban Land Ceiling Act. Thus, it was opined by the inquiry officer that those transfers are illegal. Subsequently, in the year 1994, one person preferred an appeal before the Additional Collector against the order, under which the lands were mutated in the name of Jesus Mary and Joseph, Cooperative Society. The Additional Collector cancelled the mutation order. Being aggrieved with that order, a revision application bearing Mutation Revision No. 292 of 1995 was preferred before the Commissioner, South Chhotanagpur Division, Ranchi, who set aside the order passed by the Additional Collector, Ranchi on the ground that long standing Jamabandi cannot be cancelled by the Revenue Authority though that can be challenged in a civil suit by the concerned person. Since that order was passed by the petitioner, he was also made accused in the case lodged under Sections 420/467/468/469/471/477/109/423/424/201/120B of the Indian Penal Code and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act simply for the reason that the order passed by the Additional Collector was set aside and the revision had been allowed though there is no allegation constituting offence relating to forgery and also with respect to the offence under Section 423 and 424 of Indian Penal Code. At the same time, no allegation is there that the order has been passed in corrupt or illegal means and by abusing of position of the public servant. The prosecuting agency is perhaps under the impression that since wrong order had been passed, it can be presumed to have been passed in corrupt or illegal means and by abusing his position of public servant but in absence of any material showing the order being passed in corrupt or illegal means, one cannot be prosecuted simply for the reason that wrong order had been passed though the petitioner cannot be said to have passed the wrong order, as the ground, on which the order passed by the Additional Collector has been set aside, is based on the well established principle that long standing jamabandi can not be cancelled, as has been held by the Hon'ble Patna High Court, and under the situation, the order taking cognizance is fit to be set aside. As against this, Mr. Shailesh, learned counsel for the Vigilance, submits that since the order taking cognizance itself has been challenged, case diary would be necessary to find out as to whether any such allegation is there of having undue pecuniary advantage for passing the order in the revision application and therefore, the case be adjourned for two weeks so that he may get hold of the case diary. As prayed for, post this case on 13.02.2015." Learned counsel appearing for the petitioner submits that none of the offences under which cognizance has been taken is attracted in the case as the petitioner has passed an order in a revision application which order is being taken by the prosecution to be an illegal order but even if the order happens to be an illegal order, question of committing offence of forgery does not arise and thereby no offence is made out under Sections 467, 468, 469 or 471 of the Indian Penal Code.
(3.) FURTHER it was submitted that one can hardly conceive as to how offence either under Section 423 or 424 of the Indian Penal Code is made out when there has been no case of dishonest or fraudulent execution of deed of transfer containing false statement of consideration nor it is the case of dishonest or fraudulent removal of concealment of the property.;