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The State Vs. Harishankar Goyal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1985CriLJ1714
AppellantThe State
RespondentHarishankar Goyal and anr.
Cases ReferredG. P. Nayyar v. State
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - reference may well be invited for analogy to the case of daulatram v. it is a well..........under this ordinance against any person unless a report in writing is made by such officer of the state government as it may, by notification specify....in the table provided under the aforesaid provision, as it stood originally, while authorities were prescribed for launching prosecutions of various categories of government servants, there was no authority prescribed for initiating prosecution of private parties. this omission was rectified by a notification d/-21-9-82 of the state government by naming 'commissioner of the division' as the prescribed authority for launching prosecution against persons not in government employment. however, in the instant case, the fir d/- 6-10-82 was registered at jhansi road police station against the respondents on the basis of the report of the then.....
Judgment:
ORDER

N.K. Singh, J.

1. This revision by the State is directed against the Order D/- 20-7-83, passed by Sessions Judge, Gwalior, discharging the respondents from the various offences alleged against them in a charge-sheet submitted by the Police.

2. The sum and substance- of the allegations made against the respondents is, that they were 'Colonigers' and had established a Housing Colony, known as 'Friends Colony, Harishankar Puram' at village Mahalgaon, in the vicinity of Gwalior city, by diverting agricultural land to residential purpose, without obtaining requisite legal sanction therefor, and had divided this land into residential plots, which had been sold to the members of the Housing Society, which acts amounted to offences Under Sections 25, 26, 27, 28 and 29 of the M.P. Vinirdishta Bhrasta Acharan Nivaran Adhyadesh (Ordinance XV of 1980 hereinafter described as the 'Ordinance'), and Under Section 420 of the Penal Code.

3. The learned Sessions Judge, Gwalior, under the impugned order D/- 20-7-83, has discharged the respondents on the grounds that (i) the prosecution was void ab initio, for want of requisite initiation by the prescribed authority Under Section 39 of the Ordinance, (ii) the record of the case and the documents filed therewith did not disclose, any case Under Section 420 I.P.C., so that there was no ground for proceeding in respect of this offence.

4. There is no substance in this revision petition. The Ordinance came into force on 8-9-82. Section 39 of the Ordinance provided that:

No Court shall take cognizance of and no police officer shall register a case, inquire into or investigate an offence under this Ordinance against any person unless a report in writing is made by such officer of the State Government as it may, by notification specify....

In the table provided under the aforesaid provision, as it stood originally, while authorities were prescribed for launching prosecutions of various categories of government servants, there was no authority prescribed for initiating prosecution of private parties. This omission was rectified by a notification D/-21-9-82 of the State Government by naming 'Commissioner of the Division' as the prescribed authority for launching prosecution against persons not in government employment. However, in the instant case, the FIR D/- 6-10-82 was registered at Jhansi Road Police Station against the respondents on the basis of the report of the then Collector, Gwalior, which was obviously incompetent, since the respondents are not government servants and were not covered by table prescribed Under Section 39 of the Ordinance.

5. The charge-sheet against the respondents was put up before the Chief Judicial Magistrate, Gwalior on 21-1-1983. Before commitment of the case to the Court of Session Under Section 209 Cr. P.C., an objection appears to' have been taken in this behalf before the Chief Judicial Magistrate, Gwalior. However, it was after the case was committed to the Court of Session, that the prosecution, by an application D/- 4-4-83, sought to file the endorsement D/- 6-10-82 of the Commissioner, Gwalior meant for the Collector, in connection with the prosecution of the respondents. This is rather suspicious, since no such correspondence was filed earlier before the committing court. Assuming the bona fide existence of such correspondence, even that would be ineffective in validating the prosecution of the respondents under the Ordinance, since the notification D/- 24-9-82 would still require a report in writing of the Commissioner to the Police for the purpose of prosecution, and there was no such report in writing of the Commissioner addressed to the Police. The Ordinance was repealed and substituted by M P. Vinirdishta Bhrasta Acharan Nivaran Adhyadesh, 1982 (hereinafter described as the 'Act') which came into force w.e.f. 30-10-82. No doubt, under Section 39 of this Act, the words 'a report in writing' were substituted by 'directed by' the State government or such officer or authority as it may by notification specify. But Section 39 of the Act, which became effective from 30-10-82 could not be pressed into service for validating the unauthorised prosecution of the respondents launched on 6-10-83 under the provision of the Ordinance. As such, it was rightly held by the learned Sessions Judge that prosecution of the respondents was illegal and void ab initio. Reference may well be invited for analogy to the case of Daulatram v. State of Punjab : AIR1962SC1206 wherein it was ruled out that there was an absolute bar against the Court taking seisin of the case Under Section 182, I.P.C., except in the manner provided by Section 195, Cr. P. Code, which requires a complaint in writing of the Court, in terms very much similar to the wordings of the Section 39 of the Ordinance.

6. In regard to the alleged offence Under Section 420 of the Penal Code, I have gone carefully through the documents filed on behalf of the prosecution along with the charge-sheet and find that there is not an iota of material to suggest that the respondents cheated any person, whomsoever, muchless dishonestly, thereby inducing such person to part with any property. As such, the learned Sessions Judge has rightly held that there was no material to justify framing of a charge Under Section 420, I. P. C, against the respondents. A perusal of these documents also indicates that the respondents did not hold any office in the Housing Society, and one Dwarika Prasad was holding office of the President w.e.f. 1-5-1982 after the resignation of respondent Ashok Kumar Goel. In view of this position, the prosecution of the respondents as office bearers of the Society and to the exclusion of the office bearers holding on 6-10-83, does not at all appear to be proper.

7. The Ordinance came into force w.e.f. 8-9-82, and was substituted by the Act w.e.f. 30-10-82. By the Ordinance and the Act, substituting it, a new class of offences has come into being. The legality or propriety of prosecuting persons for the acts prior to the period when the Ordinance or the Act came into force would not appear to be proper, for, as held by the Supreme Court in G. P. Nayyar v. State : 1979CriLJ589 -'Though a sovereign legislature has power to legislate retrospectively creation of an offence for an act which at the time of its commission was not an offence or imposition of a penalty greater than that which was under the law provided violates Article 20(1).' As a general rule, the 'penal statutes are not retrospective in their operation and there could be no criminal liability for the acts, which were not offences, when committed.

8. While in course of the arguments, the learned Counsel for the petitioners has also filed the certified copy of the Order dt 2-11-83, passed by Collector Gwalior in the revenue proceedings, wherein, after the necessary enquiry, it has been held that the development of the Colony had already taken place prior to the date of the Ordinance i. e. 8-9-82 and no action Under Section 31 of the Act was called for. As such, the proceedings Under Section 31 of the Act against the respondents were dropped. It is a well considered order and takes the wind out of the sails, in respect of the action initiated by the previous Collector. As a matter of fact, from a perusal of the record and the documents filed there with it is difficult to decipher, the rhyme or reason for the revenue and criminal proceedings launched against the respondents by the concerning authorities.

9. In the result, the revision petition is, accordingly dismissed.


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