J K SHARMA Vs. STATE OF H P

JUDGEMENT

(1.) This is a composite petition under Sections 482/397 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for setting aside the impugned order dated 12th August, 1992 passed by the learned Special Judge, Shimla, whereby an application under Section 321 of the Code of Criminal Procedure seeking the withdrawal of the Criminal Proceedings against the petitioner has been dismissed. The additional relief sought for by the petitioner is that the prosecution against him be ordered to be dropped, the coatinuation of the same being a clear abuse of the process of law.

(2.) The petitioner has assailed the correctness of the order of the learned Special Judge on the ground that the relevant legal and factual aspects of the case were not kept in view while deciding the aforesaid application.

(3.) The circumstances under which the petitioner alongwith others happened to be prosecuted are these:Initially, Shri Mehandi Ali Shah was the owner of immovable property known as TCentral Hotel EstateT, Shimla. Due to partition of the country in the year 1947, he left for Pakistan. Resultantly; this entire estate became an evacuee property. The same was sub-divided into four lots for further sale through auction. One of the lots so carved out was known as Central Hotel Main Building. One Shri Kala Ram Khanna is alleged to have purchased the same in the name of Smt. Shakuntala Kochhar, This property was categorised as lot No.1. As per the prosecution, the area of lot No.1 as per Valuation Form A is 1556 sq.yards. However, the sale certificate pertaining to this very property does not mention the area of the property sold to the auction purchaser (Smt. Shakuntala Kochhar). It only mentions the boundaries of the property. The petitioner, Shri J.K. Sharma was posted as Sub Divisional Officer (Civil)-cum-Settlement Officer, Una from September, 1982 to November, 1983 and in his capacity as Settlement Officer (Sales), he was required to supervise the management of the evacuee properties in district Shimla. The accusation against the petitioner is that though, in fact, only 1556 sq.yards area including Central Hotel main building belonged to Smt. Shakuntala & Kochhar, yet the petitioner in connivance with the latter, demarcated the area much in excess to the property purchased by the latter despite issuance of a letter by the Deputy Secretary (Rev.) dated 10th May, 1982, whereby the petitioner was directed to get the demarcation carried out through Tehsildar (Sales) so as to ensure that Smt. Kochhar does not sell any portion of the Govt. land. It appears that before the aforesaid property could be got demarcated, a complaint was received from Shri Kundan Lal Ahuja on 22nd May, 1985 on the basis of which a criminal case vide F.I.R. No. 82/85 dated 19th July, 1985 under Sections 468/471/420/218/167/447/120-B, I.P.C. and Section 5(2) of the Prevention of Corruption Act was registered by the Enforcement Department (South Zone), Shimla. The abovesaid direction as per letter dt. 10.5.1982 was followed by another letter dated 25.9.1982 from the Deputy Secretary (Rev. R&R) to the Govt. of Himachal Pradesh conveying the petitioner the directions of the Financial Commissioner that he should himself demarcate the land of Central Hotel estate personally. The other directjons so conveyed were as under: