STATE Vs. SHAMSHER CHAND PATWARI

JUDGEMENT

(1.) ORDER :- State through S. S. P. Vigilance has filed the revision petition against the order dated 22-3-95, passed by the learned Special Judge, Anti-Corruption, Jammu whereby he discharged the respondents for the commission of offences stated therein. Respondent No. 1 is a Patwari in the Revenue Department and respondent No. 2 is a private individual.

(2.) The relevant facts of the case are that on January 10, 1991, Principal, Dewan Badrinath Vidya Mandir, Jammu namely, Kamal Nanda lodged written report before the Vigilance Commissioner, J and K, Jammu stating therein that land comprising of Khasra No. 511 min. situated in village Gole is Government land and adjacent to it is the building of Smt. Susheela Devi, Shishu Mandir Model School. Respondent No. 2 has encroached upon the said State land. This encroachment was reported to Irrigation Department but no action was taken because of the collusive attitude of some of the officials of the said department with respondent No. 2. It was also alleged that respondent No. 1 after accepting illegal gratification of Rs. 5,000/- from respondent No. 2, had made a false entry in the revenue record pertaining to the Girdwari of Kharif 1989 in favour of the latter who on its basis has derived pecuniary benefit worth lakhs of rupees (present cost of land in question) and raised illegal construction thereon. On the basis of this report, case was registered under F.I.R. No. 78/92 and final report for the commission of an offence under S. 5(2) of the Prevention of Corruption Act, 2006 (hereinafter referred to as Act) read with S. 120-B, R.P.C. was submitted before the Special Judge Anti-Corruption, Jammu. It is also stated in this report that land measuring 6 marlas comprising of Khasra No. 511 min was owned and possessed by M/s. Darinder Kumar and Varinder Kumar sons of Smt. Susheela Devi but on the basis of a fake affidavit of their mother said Smt. Susheela Devi, its transfer was given effect by respondent No. 1 in favour of respondent No. 2 in the revenue record. Respondent No. 2 after making an encroachment has raised construction thereon as well as encroached upon one marla of land belonging to Irrigation Deptt. The State Government vide its order No. 88, dated 4-8-94 had also accorded permission for the prosecution of respondent No. 1 and this sanction of prosecution was accompanying the said final report.

(3.) The learned Special Judge Anti-Corruption, Jammu vide this impugned order discharged the respondents holding that prima facie no case was found made out against them. The learned Judge held that a wrong entry in favour of another person made in the revenue record, does not constitute an offence under S. 5(1)(d) of the Act because it lacks the element of misuse of official position. A "Girdwari entry" creates only a fiscal document which raises rebuttable presumption of possession and is not a conclusive piece of evidence. It was also held that there was no allegation against respondent No. 1 to have received any reward or gratification and any act which is not in accordance with law, rules or procedure but done innocently even conferring some benefits upon someone will not fall within the penal dragnet of clause (d) of S. 5 of the Act.