## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE V.K.MOHANAN**
**THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932**
**Crl.Rev.Pet.No. 3648 of 2008(A)**
**-------------------------------------------[CRL.M.P.NO.338/2007 IN CC.24/2006 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOZHIKODE]**
**....................**
## **REVN. PETITIONER/PETITIONER/2ND ACCUSED:**
**----------------------------------------------------------------------**
**SUBAIR MUHAMMED, S/O.KUNHAMMED, RAFEEQUE MANZIL, AMBALAPPUZHA, ARYANAD SOUTH VILLAGE, ALAPPUZHA DISTRICT, (THEN SUB REGISTRAR, SUB REGISTRAR'S OFFICE, KALPETTA, WAYANAD DISTRICT).**
**BY ADV. SRI.T.A.SHAJI.**
## **RESPONDENT/RESPONDENT/STATE:**
**------------------------------------------------------**
**STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (REPRESENTING THE DY.S.P.VIGILANCE AND ANTI CORRUPTION BUREAU, WAYNAD).**
**BY PUBLIC PROSECUTOR SRI. B. VINOD.**
**THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**prv.**
## **V.K.MOHANAN, J.**
## **---------------------------------------Crl.R.P. No. 3648 OF 2008**
**----------------------------------------** Dated the 21[st] Day of October , 2010
## **ORDER**
The revision petitioner herein is the 2[nd] accused in C.C.No.24/2006 on the file of the court of Enquiry Commissioner and Special Judge, Kozhikode.
2. The allegation is that while the petitioner was working as Sub Registrar in the office of the Sub Registrar, Kalpetta during the period from 11.3.99 to 29.11.99, he had registered document No.1134/99 of SRO Kalpetta, executed by 5[th] accused Sajeevan on the strength of power of attorney of 6[th] accused whereby jenmam right of 25 cents of land was conveyed in favour of one K.K.Babu through 21[st] accused in the above case and the further allegation is that the property covered by the above document , though originally belonged to the firm of A6, the same became vested forest as per notification No. D- 5272/77 dated 8.7.77. Thus, according to the prosecution, the accused Nos.2,3 and 4 and other Sub Registrars conspired with A5 with so many other persons and abusing the official position of A2 registered the above documents causing heavy loss to the government property. Thus according to the prosecution,
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the accused have committed the offence punishable under sections 13(2) read with Section 1(d) of the Prevention of Corruption Act, 1988 and Sections 465, 468, 420 and 120B of IPC.
3. In the above Calendar Case, the revision petitioner, who is the 2[nd] accused preferred Crl.M.P.No.313/2007 under section 227 of Cr.P.C seeking his discharge from the above case. But the court below by order dated 31.10.2008 in MP 338/2007 in CC 24/2006, dismissed the above petition as he found no merit in the said petition. It is the above order of the learned Special Judge, challenged in this Crl.R.P.
4. I have heard the T.A.Shaji, the learned counsel appearing for the petitioner and Sri P.Vinod, the Special Public Prosecutor.
5. Sri T.A.Shaji, the learned counsel appearing for the petitioner reiterating the contention raised in the revision petition, vehemently submitted that absolutely there is no materials or evidence or allegation to frame a charge against the revision petitioner for the offence stated in the above Calendar Case. The learned counsel submitted that
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admittedly, A6 is the jenmam owner of the property in question, who executed a power of attorney in favour of A5 and in turn A5 got registered 17 documents in favour of A21 in the Sub Registrar’s office at Kalpetta. The learned counsel submitted that the sole allegation or claim of the prosecution agency is that the property covered by the document in question belonging to the firm of A6 and the same vested in forest as per the notification No.D 5272/77 dated 8.7.1977, but by the lawful act of A2, no pecuniary loss sustained by the Government and the title of the property would not have been transferred in the name of A21. It is the further contention of the learned counsel that the registration of document No.1134/99 and giving official recognition for the same by the revision petitioner was within his competence and jurisdiction and there was nothing illegal or improper. In the light of Sections 34 and 35 of the Registration Act, the learned counsel submitted that it was the bounden duty of the revision petitioner to register document if he is satisfied with the conditions or grounds contemplated by sections 34 and 35. The learned counsel further submitted that absolutely
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there is no evidence or materials or even an allegation from the part of the prosecution agency to attract the essential ingredients of Section 465, 468 and 120B of IPC. The learned counsel submitted that the Special Judge miserably failed to consider the above crucial points while dismissing the petition for discharge filed by the revision petitioner.
6. The learned Public Prosecutor after obtaining sufficient time from this court, gone through the prosecution papers and after verification submitted that A2 was working as the Sub Registrar at the time of execution of document No.1134/99 and, as a government officer, he had a duty to see that the registration of documents are allowed only in accordance with the timely instructions issued by the department or the Government. But in the present case, there is a laps on the part of the revision petitioner in strictly adhering the procedure and instruction issued by the government. But according to the learned Public Prosecutor, there is no material or allegation to show that the petitioner had made any demand for bribe and somebody, or any of the other accused, had made the payment and thus he received
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such bribe.
7. I have carefully considered the arguments advanced by the learned counsel for the revision petitioner as well as the learned Public Prosecutor and I have repeatedly gone through the impugned order of the learned Special Judge.
8. Admittedly, the government notification No.D.5272/77 dated 8.7.77 was published on 8.7.77 and by virtue of publication of the above notification, the properties covered by such notifications are vested with the forest. If that be so, the document No.1134/99 of SRO Kalpetta which was registered by the petitioner have no consequence at all as far as the title of the property concerned since even before 11.3.99 the forest had already vested with the government and neither A6 nor A5 has any title over the property covered in the documents mentioned if the same is covered by the notification. Admittedly, there is no allegation against the revision petitioner that himself or any other accused forged any document for the purpose of the registration of the above numbered document. Even though I have repeatedly gone through the impugned order, there is no whisper or any
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reference to any material or circumstances to hold that the petitioner had involved in any criminal conspiracy with A5 and A21 for the purpose of registration of the document. Therefore, according to me, there is no material to frame a charge against the revision petitioner under sections 465, 468 and 120(b) of IPC.
9. Section 13 of the Prevention of corruption Act 1988 deals with criminal misconduct by public servant and the criminal misconduct are enumerated under section 13(1) of the said Act. Section 13(2) is the punishment if the public servant committed criminal misconduct. In order to attract the criminal misconduct by public servant, the demand for and acceptance of bribe is an inevitable and essential ingredient. But in the present case, absolutely there is no allegation that the petitioner had demanded bribe or accepted the same or any other accused person has paid the bribe to the revision petitioner. As the petitioner herein is obliged and governed by Sections 34 and 35 of the Registration Act and if a document is presented for registration in the manner prescribed by the Act and
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provisions of the Registration Act, he is bound to register the same on his satisfaction of the other conditions contemplated by other provisions and therefore in the absence of allegations to attract sections 13, 13(1) and 13(2) of the P.C.Act, none of the offences raised in the complaint is attracted against the petitioner. The Prosecution has no allegation that the petitioner has willfully failed to discharge the above duty so as to enable the other accused for registering the above mentioned documents. In the absence of any materials or evidence or at least allegation so as to attract Section 13(1)(d), it cannot be said that the prosecution has made out any prima facie case so as to proceed further with the trial against the revision petitioner and there is no meaning in directing the revision petitioner to face the trial in the absence of sufficient grounds to proceed with the trial.
In the light of the above facts and discussion, I am of he view that the order of the Special Judge is not correct , proper and legal and the learned Judge ought to have allowed CMP No.338/2007 discharging the revision petitioner/accused under section 227 of Cr.P.C. Accordingly, this Crl.R.P. is
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allowed discharging the revision petitioner/accused in C.C.No.24/2006 of the court of Enquiry Commissioner and Special Judge, Kozhikode especially in the light of the decision in **Eshaque v Sub Registrar** (2002(1) KLT 330).
V.K.MOHANAN, JUDGE.
kvm/
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