पिता धूमल की सरकार में पुत्र अनुराग की HPCA के लिए हुए करतब HC की निगाह में आए,यहां पढ़े सब कुछ

शिमला। भाजपा सांसद अनुराग ठाकुर की एचपीसीए की इस मामले में दर्ज एफआईआर को रदद करने की याचिका को खारिज करने के साथ ही इस मामले में किस तरह के खेल खेले गए हैं वो भी हाईकोर्ट की निगह में आए गए हैं। जस्टिस त्रिलोक चौहान ने विजीलेंस की ओर से पूर्व प्रेम कुमार धूमल ,उनके बेटे, अनुराग ठाकुर और एचपीसीए के पीआरओ संजय शर्मा के समेत बाकियों पर लगाए इल्‍जामों का जिक्र एफआईआर रदद करने की याचिका को खारिज करते हुए, कर दिया हैं।

एचपीसीए ने अदालत में दलील दी थी कि No criminal allegations have individually been attributed to any of the petitioners.

लेकिन अदालत ने Cr.MMO No. 285 of2015 का हवाला देते हुए धूमल,अनुराग व बाकियों के खिलाफ लगे इल्‍जामों का जिक्र कर दिया। एचपीसीए की याचिका के साथ ही ये Cr.MMO No. 285 of2015 भी लंबित था।

क्‍या हैं जिक्र यहां पढ़े-:  

39. The petitioners would then contend that no specific criminal allegations have been attributed to any person, therefore, the proceedings based on vague and general allegations cannot be made the basis of the charge-

sheet and this in turn cannot lead to their prosecution and therefore the same deserve to be quashed.

40. I am afraid even such contention is without merit for the simple reason that the prosecution has set out specific allegations against each one of the petitioners.
41. As regards petitioner No. 2 in Cr.MMO No. 285 of2015, the specific allegations against him read as under:-

“SH. ANURAG THAKUR

1. Sh. Anurag Thakur is President of the HPCA since July, 2000. The building in question was demolished on his behest. As the President of the HPCA, he wrote

a letter No. nil, dated 03/07/2008 (Annexure –N1 & N2, Page No. 510-514) to the Director YSS regarding lease of land comprising Khasra no. 3547/3335/2/1measuring 720 sqr. Mtrs., situated in Mohal Civil Station Dharamshala, stating therein that the HPCA requires this portion of the land, since the said land is adjoining to the cricket stadium.

2. It is pertinent to mention here that Sh. Anurag Thakur,President of the HPCA is the elder son of Sh. PremKumar Dhumal, the then Chief Minister of HimachalPradesh. Sh. K.K. Pant, IAS, the then D.C. Kangra had admitted that the meeting for re-allocation of the government accommodation was convened on the directions of the then Chief Minister, HimachalPradesh.

3. The meeting was held by the Deputy Commissioner,Kangra knowing very well that the relocation of thegovernment accommodation was being done to

benefit Sh. Anurag Thakur. Sh. Anurag Thakur washaving knowledge that in the year 2002 the education department vide office letter no. EDN-AJA (8)-5/2000 Dt. Sept., 2001 had issued N.O.C./Permission for transfer of college land to Youth Services and Sports Department with a condition that sufficient land should be spared in the vicinity of land for future construction of staff quarters and due to this very reason, this portion of land was not transferred to Y.S.S. at that time. This government

building consisting of type-IV quarters was not only an eyesore to the HPCA but also a major obstruction in the way of construction of the cricket stadium.

4. Sh. Sanjay Sharma could not have attended themeeting at DC office on 14.03.2008, without the knowledge and instructions of HPCA President,

moreover when the land under the said building had become a genuine requirement for construction of the cricket stadium.

5. Therefore, the government building existing on this piece of land was got demolished by the HPCA by involving contractors/construction companies, to

pave way for the construction of the Cricket Stadium, by taking advantage of the influence of Sh.P.K. Dhumal, father of Sh. Anurag Thakur and the then Chief Minister of Himachal Pradesh.

6. The investigating officer of this case had requestedSh. Anurag Thakur vide notice u/s 91 of Cr.PC,No.3436, dated 23/11/2013 (Annexure – KD1, Page No. 294), letter No. SPL/SV&ACB-10, dated 13/11/2013 (Annexure – KD2, Page No. 296) and

letter No. 3637, dated 13/12/2013 (Annexure – KD3,Page No. 298), to supply the proceeding register ofthe HPCA and name & addresses of the contractors/construction companies engaged for the construction work of the stadium, particularly at the site where the building in question existed. But till

date, he did not supply the required information onone pretext or the other.

7. Thus, Sh. Anurag Thakur, as President of the HPCA illegally encroached upon the land, got the building demolished and committed offences u/s 447, 201,

120B IPC and Section 3 of PDPP Act.”

42. As regards petitioner in Cr.MMO No. 355 of 2015,the specific allegations against him are as under:-

“SANJAY SHARMA

1. Accused Sanjay Sharma attended the meeting on14-03-2008 with other accused persons for thereallocation of Type-IV quarters in the office of Deputy Commissioner, Kangra at Dharamshala asrepresentative of the HPCA. The rules and regulations of the HPCA, as ratified and confirmed on 20.01.2001 by the executive body of the HPCA,states in para 14 that the executive body of the HPCA shall comprise of 12 members, including Public Relations Officer (Para 14, serial No. (x).Thereafter, in the Annual General Meeting of the HPCA, dated 06.06.2010, the name of Sh. Sanjay

Sharma is mentioned against the designation of PRO in the attendance roll (Serial No. 8). This fact has been corroborated from the record obtained from the Registrar of Societies, H.P., Shimla (Annexure –BR1, BR2, Page No. 367-454).

2. There is no document on record with DeputyCommissioner Office, Dharamshala that under whose direction he was called to attend this meeting which clearly shows that he was well aware of this meeting, being held in the interest of the

HPCA cricket stadium? Being interested party in the meeting, Sh. Sanjay Sharma, according to witness Sh. Duni Chand (the then AC to DC) who was also present in the meeting stated that Sh. Sanjay Sharma stressed that the building in question was in dilapidated condition and security threat to the players inside the cricket stadium, whereas this building was in existence at the time of lease in the year 2002 and in respect of which the education department had imposed a condition for the transfer of land to the deptt. of YSS that, “sufficient Land should be spared in the vicinity of land for the present U.G.C. accommodation for future construction of staff quarters”.

3. It is evident that the building was an eyesore to the HPCA and the HPCA had wanted the removal of the same at any cost. Sh. Sanjay Sharma who had

participated in the meeting and insisted upon the  removal of the building is PRO of the “HimachalPradesh Cricket Association”. As per demarcation report of Tehsildar, Dharamshala, the land in question on which the building existed is under the

encroachment of the HPCA. Therefore, he has abetted offence u/s 120B IPC and of Section 3 PDPP Act.”

43. Finally, the allegations against petitioner in Cr.MMONo. 338 of 2015, reads as under:-

“Gautam Thakur

He was honorary Secretary of the HPCA w.e.f. 2005 to2010, as per para 11 of the proceedings of the annual general meeting of HPCA, dated 06/06/2010 (Annexure

– BR 2, Page No. 401) and charge handing over certificate of hony. Secretary HPCA, dated 25/06/2005 (Annexure – RR, Page No. 300). Since the construction

companies executed the work on behalf of the executive body of HPCA, he being general secretary of the association is liable for offences u/s 447, 201 IPC

and Section 3 of PDPP Act.”

44. Likewise, specific allegations against the other coaccused,who are not before this Court have also been set out in the final report. Thus, the contention of the petitioners that there are no specific criminal allegations attributed to any of the accused is devoid of any merit and is accordingly

rejected.

एचपीसीए की ओर से  इस मामले में विजीलेंस की ओर से दायर एफआईआर को रदद करने के लिए निम्‍न दलीलें दी गई थी। यहां रही ये दलीलें-:

जजमेंट में जिक्र हैं कि . Shri P.S. Patwalia, Senior Advocate, duly assisted by S/Shri Abhinav Mukerji, Parshotam Chaudhary, Vikrant Thakurand Amit Kumar Dhumal, Advocates, sought quashing of theFIR on the following grounds:-

1. That there is no proof of the HPCA being a trespasser as the demarcation conducted in this case has already been held to be illegal by Coordinate Bench of this Court (Justice Rajiv Sharma, J.) in Cr.MMO No. 37 of 2016, titled

Himachal Pradesh Cricket Association & another vs. State of Himachal Pradesh, decided on 02.08.2016.

1. The building over the land in question had not been demolished but had only been re-allocated.

1. The decisions taken by the competent authorities had been taken in accordance with the Rules of Business and any irregularity in such

decisions could at best be termed to be an administrative lapse for which the petitioners could not be criminally prosecuted.

1. No criminal offence is made out against the petitioner as the land has not been given to anyindividual but has been given to the Company that

too on lease.

1. Prosecution sanction against some of the officers had already been refused by the Central Government and in case of certain individuals, the

State Government itself had not granted the prosecution sanction and that apart some of the officers who are the blue eyed boys of the government have been intentionally left out and not arraigned as an accused, therefore, the prosecution proceedings cannot continue and deserve to be quashed.

1. Since, the petitioner No. 1 is a Company,therefore, the provisions of Prevention of Corruption Act are not applicable.

1. No criminal allegations have individually been attributed to any of the petitioners.

1. The instant case being an outcome of political vendetta cannot be permitted to continue.

इसके जवाब में सरकार की ओर से ये जवाब दिया गया-:

इन दलीलों के जवाब में सरकार ने ये जवाब दिया-:

8. On the other hand, Shri Sharwan Dogra, Advocate General, duly assisted by Ms. Meenakshi Sharma, Mr. Rupinder Singh, Additional Advocate Generals, Mr. Kush Sharma, Deputy Advocate General and Mr. J.S. Guleria, Assistant AdvocateGeneral, for respondent No. 1, would vehemently argue that once the trial Court has already taken the cognizance of the case on filing of the charge-sheet, the present petition is not maintainable as the petitioners have right to address the learned trial Court on the factum of consideration of charges.

He further contended that the procedure prescribed under Criminal Procedure Code (for short ‘Code’) cannot be allowed to be circumvented by allowing the petitioners to approach this Court by invoking provision under Section 482 Cr.P.C. It is further argued that this Court, at this stage, would not

appreciate the evidence and go into the nitty-gritty of the case, especially once it is prima facie established that the petitioners have encroached upon the government land andthe role of the each of the accused have been properly investigated and lawful evidence has been collected and thereafter the entire report placed before the competent Court for taking cognizance of the offence.

I have heard learned counsel for the parties and have gone through the material placed on record.

इसके बाद जस्टिस त्रिलोक चौहान ने बिंदुवार हर पहलू पर अपने जजमेंट में ये जिक्र किया हैं। पढ़े यहां -:

9. The parameters for quashing proceedings in criminal complaint or FIR are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of Court’s process, quashing jurisdiction can be exercised.

एपीसीए की दलील थी कि A. That there is no proof of the HPCA being a trespasser as the demarcation conducted in this case has already been held to be illegal by Coordinate Bench of this Court (Justice Rajiv Sharma, J.) in Cr.MMO No. 37 of 2016, titledHimachal Pradesh Cricket Association & another vs. State of Himachal Pradesh, decided on 02.08.2016.

14. Elaborating on the first submission, learned Senior Counsel for the petitioners would argue that the entire case of the prosecution accusing the petitioners to be encroachers over the land in question is solely based upon and rests upon the report of the Local Commissioner. However, the said report has already been set aside by a Coordinate Bench of this Court in Cr.MMO No. 37 of 2016 and, therefore, once the very foundation on which the edifice of the FIR is built collapses then with it falls the entire edifices.

15. Before appreciating this contention, it is necessary to bear in mind that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. It is more than settled that observations of Court are

neither to be read as Elucide’s Theorms nor as a provision of a statute and that too taken out of their context. These observations must be read in the context only as they appear to have been stated and judgments of Court are not to be construed as statute. It is equally settled that judgment of the

Court is only authority to what it actually decides and not what logically follows from it.

16. Having stated the legal position I may now advert to the relevant observations as made in the judgment of Cr.MMO No. 37 of 2016, upon which heavy reliance is placedby the petitioners and the same reads thus:
17. The basis of registration of FIR No. 57/2014 dated 8.4.2014 is the demarcation report dated 14.11.2013 carried out by Shiv Dev Singh, Tehsildar at page 389 of

the paper book. According to the report, the HPCA has encroached upon Kh. Nos. 3620/2826/1 measuring 216.26 sq. meter, 3618/2826/1 measuring 756.28 sq.

meter and 3675/3547/3335 min/1 measuring 966.56 sq. meter. However, as noticed hereinabove, Shiv Dev Singh, Tehsildar has admitted that the correct Kh. No. was 3628/2838/1 instead of 3620/2826/1. The fact of the matter is that this mistake has not been rectified by the Tehsildar. The statement made under Section 161Cr.P.C. is not signed. Similarly, in his report dated 14.11.2013, he has mentioned that HPCA has encroached upon Kh. No. 460/307 but he has not mentioned that land is owned by Gurmeet s/o  Gurpreet Singh. The basis for registration of the FIR is the

demarcation report dated 14.11.2013.

5. The Addl. Chief Secretary (Home), to the Government of Himachal Pradesh has filed the reply to the petition. The reply filed is vague and sketchy. The averments made in the petition have not been specifically denied. The gist of the reply filed is that the police has registered the case and the investigation has been carried out and the challan has been put up in the Court. The State should have filed the

comprehensive reply traversing all the grounds mentioned in the petition. The reply has been filed by a responsible officer but the same is not in conformity with

Order XIX of the Code of Civil Procedure.

6. Section 107 of H.P. Land Revenue Act reads as follows:

“(1) A Revenue Officer may, for the purpose of framing any record or making any assessment under this Act or on the application of any person interested, define the limits of any estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require survey marks to be erected or

repaired.

(2) In defining the limits of any land under subsection (1) the Revenue Officer may, cause survey marks to be erected on any boundary already determined by, or by order of any court, Revenue Officer or Forest Settlement Officer, or restore any survey marks already set up by, or byorder or any court of any such officer.”

7. The Financial Commissioner has issued detailed instructions for the demarcation under Chapter 10 of the H.P. Land Record Manual, 1992. The notification dated 16.7.2012 has substituted Chapter 10 of the H.P. Land Records Manual, 1992, notified on 3.12.1992. Para 10.1 of Chapter 10 provides that any co-sharer or a

person having a legally established title of ownership or possession in a land may submit an application for demarcation to Assistant Collector of either grade with

the court fee prescribed in the H.P. Court Fee Act, 1968 accompanied with a copy of latest Jamabandi, acopy of mutation sheet relating to which theapplication for demarcation has been filed if Khasra number has been subdivided, current settlement map (Musavi) of the land also showing adjoining khasra numbers or sub-divided khasra number, if any and process fee as prescribed under the rules. The Revenue Officer, before whom, an application for demarcation is preferred is required to register the application in the proper register, cause a note of the pending application is required to be entered in remarks column of the jamabandi. On conclusion of the demarcation proceedings, a note to this effect is to be recorded against the Khasra No./land which has been demarcated alongwith name of the applicant.

8. Para 10.2 specifically lays down that the applicant shall implead all persons who are co-sharers with him in the land of which demarcation is being sought. Besides,

owners of land who are in possession of the adjoining plots of land are to be impleaded as necessary parties to the demarcation. Para 10.3 prescribes the authority competent to demarcate the land. Para 14.4 provides that if the boundary is in dispute, the person carrying out the demarcation should measure it from the Village map (musavi) prepared during the last settlement or revision as the case may be. The map so prepared shall  include maps prepared by electronic methods e.g.GPS, ETS etc. In case of a map prepared on triangulation system of measurement following the conventional method of survey, he should demarcate

the land in dispute with reference to three fixed points.

Such fixed points will be the reference points (chandas)which were the basis of measurement of the land during the previous settlement and will therefore be

depicted on the musavi. These points should be such that have remained undisturbed since the last settlement. Statements of parties accepting such points

as basis for the demarcation should be recorded before starting measurement work. It is further providedin para 14.4 that if the parties do not agree on any such

fixed recognizable points, then the person demarcating the land will find such points on his own with the help of the map (musavi). Thereafter, the person demarcating the land will measure these points and compare the result with the distance given on the map. If the distances when thus compared are agreed in all cases,he can then proceed to demarcate the land with reference to these points. It is further laid down in the instructions that if three fixed points are not available

and only two fixed recognizable points are available, a third point may be found with the help of these two points so as to form a triangle.

9. It is evident from these instructions that all the persons who are co-sharers with him in the land of which demarcation is being sought, besides that person, the owners of land who are in possession of the adjoining plots of land will be impleaded as necessary parties to the demarcation. The statements of the parties is to be recorded before starting measurement. In the instant case, the demarcation has been undertaken without informing the HPCA and its office bearers. The notice

was required to be issued to the office bearers to be present at the time of carrying out the demarcation.

Their statement was to be recorded at the time of fixing three pucca points. It is also provided in para 10.5. that after demarcation, a statement of the parties present is to be recorded and placed on the file alongwith a detailed demarcation report. The office bearers were neither impleaded as per para 10.2 nor they were

notified of the date of demarcation i.e. 14.11.2013. Their statements were also not recorded after the demarcation. The report is required to clearly mention all the persons who were present or absent from the impleaded parties. The demarcation report is required to explain, as per para 10.5 in detail, as to how the measurement was undertaken and it should also mention as to what method was adopted and the manner in which the starting points and the fields were measured. The statements of the interested parties are required to be recorded and the objections regarding demarcation are also to be noted. In the instant case, since the office bearers have neither been impleaded nor heard at the time of fixing pucca points after preparing the demarcation report, they have been deprived the right to file even objections regarding demarcation.

10. Para 10.7 provides that on receipt of the report, the Revenue Officer shall summon all the interested parties and record their statements. In case one of the parties objects to the demarcation report and he finds the objections to be sustainable, the Revenue Officer shall get the land redemarcated and thereafter decide the objections by a reasoned order. In the instant case, the Revenue Officer has neither summoned the office bearers of the Association nor recorded their

statements.

11. Para 10.8 of the newly substituted Chapter 10 provides that the demarcation proceedings being quasi judicial in nature, unless an order accepting a report of demarcation passed by a Revenue Officer is set aside in appeal or revision by an authority of higher competent jurisdiction, a fresh demarcation of the

boundaries of land demarcated shall not be given.

Hence, whenever an application for demarcation is received, a Revenue Officer must ensure that all adjoining landowners are impleaded as parties and the applicant is made to fence his boundary at the time of demarcation in the presence of the adjoining land owners so that the demarcation involves all the

necessary parties to avoid further applications for demarcation of the same boundary. It would be apt at this stage to mention that it is not that the office bearers have not been summoned but the land owners of the

adjoining land were also not impleaded as parties.

7. A perusal of the aforesaid observations, makes it evidently clear that what in fact weighed with the Court in setting aside the demarcation so far as it pertained to the land involved therein was that all the co-sharers besides certain owners of adjacent land, had also not been associated in the demarcation and therefore the same was held to be in contravention of Chapter 10 of the H.P. Records Manual whereunder it was incumbent upon the revenue officer to associate all the co-sharers besides the owner of the adjacent property, and only thereafter could the demarcation have

been conducted. However, this is not the fact situation obtaining in the instant case.

18. The precise case set-up by the petitioners themselves before this Court is that the HPCA was leased out government land measuring 49118.25 sq. mtrs., whereas its possession on the spot was over approximately 46000 sq. mtrs

which includes 720 sq. mtrs. of land i.e. the ‘land in question’ and such averments have been specifically set out in para 57

of the petition, and reads thus:-

“57. On 3.10.2013, FIR No. 14 was caused to be registered by Mr. Virbhadra Singh against the petitioners alleging commission of offences under Section 447 read with 120 B of the Indian Penal code,Section 3 of the Prevention of Damage to Public

Property Act, 1984 and Section 13(2) of the Prevention of Corruption Act, 1988. However, it would not be out of place to mention here that the lease deed was

executed by the State Government with the petitioners in respect of the government land measuring 49118 sq. mtrs whereas, the possession of the petitioners on the spot of the leased land is approximately 46000 sq. mtrs

including 720 sq. mtrs of land which is in dispute in FIR No. 14 of 2013. Thus, the 720 sq. mtrs of land is verymuch within the area leased to the petitioners. Further,

before lodging FIR the respondents got demarcatedthe leased land from the revenue authorities but neither the petitioners nor its authorised representatives were associated in the demarcation. So, the allegation regarding encroachment of 720 sq. mtrs of land is a concocted story to harass the petitioners.”

19. Therefore, once it is the specific case of the petitioner No. 1 that it is in possession of not only the ‘land in question’ but the entire land in and around it, it essentially means that there is neither any co-sharer nor any owner of the

adjacent land because even as per the spot map furnished to the Court, it is admitted that the land in question is situate in the middle of the stadium between main gate and the practice area. Therefore, in such circumstances, there was no requirement or even the necessity of giving notice to any one including the petitioners as no prejudice whatsoever has been caused to them. Rather, the demarcation report has only strengthened their plea and vindicated their stand that the petitioner No. 1 is in possession of the land in question.

20. Now, the further question as to what is the nature of the possession of petitioner No. 1 i.e. whether as a lessee or a trespasser or in any other capacity would essentially be a question to be determined during the course of the trial. This Court would otherwise not un-necessarily like to embark upon

the controversy and render findings at this stage as the same is not only likely but is bound to adversely affect the case of either of the parties.

एचपीसीए ने दूसरा बिंदु ये उठाया था-:

1. The building over the land in question had not been demolished but had only been re-allocated.

21. Learned Senior Counsel for the petitioners would then argue that the petitioners have un-necessarily been arraigned as accused and would now be compelled toundergo the agony of trial for having allegedly demolished thebuilding standing over the land in question whereas the fact of the matter is that this building was only re-allocated that tooafter the competent authorities had found it to be in adilapidated condition.

22. Notably, even the petitioners do not dispute that there was a building standing over the land in question which now has been demolished and new building to accommodate the teachers has been constructed at a different place. It isthe specific case of the prosecution that the buildings existing over the land in question belonged to the EducationDepartment and had been constructed out of the grants made available by the UGC and the State Government. It is also the specific case of the prosecution that the buildings

have been demolished in violation of CPWD Manual and even the debris had not been accounted for. Therefore, in such circumstances, the complicity of the petitioners that too for the offences leveled against them would again essentially be a matter of trial as for now their innocence cannot be readily inferred from the material available on record.

23. It is settled proposition that while considering the case for quashing of the criminal proceedings the Court should not “kill a still-born child” and appropriate prosecution should not be stifled unless there are compelling circumstances and reasons to do so.

24. In exercise of powers under Section 482 Cr.P.C., it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to theextent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the

Court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed alongwith the petition labeled as evidence without being tested and proved cannot be examined.

25. This Court has no jurisdiction or authority to go into the material or examine the correctness of allegations unless allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion and there are no sufficient grounds for proceeding against the

accused but the Court, at this stage, cannot go into the truth or falsity of the allegations, as it cannot undertake meticulous examination of evidence for considering whether the case would end in conviction or not, at this stage. The probabilities of the prosecution version cannot be analyzed at this stage

and likewise the allegations of mala fides of the informant are of secondary importance.

एफआईआर रदद करने के लिए एचपीसीए ने तीसरा आधार ये बनाया था-:

1. The decisions taken by the competent authorities had been taken in accordance with the Rules of Business and any irregularity in such decisions

could at best be termed to be an administrativelapse for which the petitioners could not becriminally prosecuted.

26. Learned Senior Counsel for the petitioners would then contend that going by the material placed on record it can at best be said to be a case of administrative lapse, for which the petitioners cannot be criminally prosecuted. Strong reliance in support of this contention is placed upon the

following observation made by a Coordinate Bench of this Court in Cr.MMO NO. 134 of 2015, titled Prem Kumar Dhumal vs. State of Himachal Pradesh, 2015 6 ILR (HP) 670, which reads thus:

22. The application has been processed in accordance with Rules governing the issue of submission of application for seeking voluntary retirement and its

withdrawal. The order made by the Chief Minister on 03.01.2008 and the notings made by Principal Secretary (Home) and the Chief Secretary will not amount to

criminal misconduct. It was purely an administrative decision. Merely that Shri A.N. Sharma has superannuated on 30.11.2011 instead of 21.11.2007, will not render it an illegal act. There was no dishonest intention or guilty mind involved in the decision making process. Even as per the language employed by the then Chief Minister, the observation made is that the withdrawal which appears to be in order, may be

accepted. The words “appears and may be accepted” are not couched in mandatory and imperative language. It was for the officers concerned to deal with the matter in accordance with law which in fact they have done so by taking into consideration the Rules, decisions and the statements of the Constables who have diarized the application submitted by Shri A.N. Sharma seeking withdrawal of

application for voluntary retirement.

[25] While taking the administrative decision, the principles of Evidence Act would not apply. The case was decided as per the conditions of service governing

the case of Shri A.N. Sharma. Shri A.N. Sharma was also given personal hearing on 24.01.2008. Thus, it cannot be said that Dr. P.C. Kapoor has followed any illegal

dictate of the then Chief Minister.

 [26] Now as far as Shri Ravi Dhingra is concerned, he has approved the file  submitted by the Principal Secretary (Home) and has submitted to Hon’ble the

Chief Minister. This exercise does not have any trappings of criminal misconduct or dishonest intention.It is purely administrative decision based on the orders passed by the Principal Secretary (Home).

30. The case of the prosecution is that the then Chief Minister exercised the power with mala fide intention.What malice is, has been explained in Corpus Juris Secundum to signify either general malignity or ill-will toward another or simply an intent to commit a wrongful act. In criminal law, the term is not generally used in the former sense, but only in the latter as synonymous with “criminal intention” and as applied to the state of mind of a person who does a wrongful act intentionally or willfully, and without legal justification of excuse. According to Corpus Juris Secundum, ordinarily one is not guilty of a crime unless he is aware of the

existence of all those facts which make his conductcriminal. Without guilty knowledge, criminal intentcannot exist. It cannot be said, in the present case, that

the then Chief Minister has acted knowingly to do acriminal act. The act of the then Chief Minister and petitioners cannot be termed as willful. The willful act sometimes is held to be equivalent to “intentional” or “designed”, and not to require a wrongful intention or malice. The act of the then Chief Minister and other

petitioners cannot be held to be a criminal act. They have neither any motive nor malice to do any criminal act or designed. It was purely an administrative

decision.

. The administrative action has been defined inVolume-2 of Corpus Juris Secundum to mean as under”-

“Administrative action includes not only merely ministerial acts, but many decisions by responsible public officers involving judgment and discretion, and administrative officers, in arriving at decisions, may be free to investigate and determine proper methods and procedures, although their final decision is ex parte in nature, as distinguished from decisions based upon evidence which the parties at interest have an absolute right to present and insist upon. Administrative acts.

Acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are

those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by

the organic law of its existence. They are commonly called “administrative acts”. “Administrative acts” have been compared with or distinguished from “judicial

acts,” and “legislative acts”.[67] The allegations contained in the FIR No. 6 of 2014

dated 17.6.2014 and accusations made in the final report even if taken at their face value and accepted in their entirety, neither constitute criminal misconduct

nor discloses guilty mind or dishonest intention. It is reiterated that it was purely an administrative decisiontaken strictly as per the laid down procedure.

27. I have deeply considered this contention and have also minutely gone through the observations as extracted above and find that these observations are practically of no assistance to the case of the petitioners and otherwiseinapplicable to the facts of the instant case.

28. Admittedly, in the aforesaid case, it was the government officials who have approached this Court and sought quashing of the FIR on the ground that the allegations made against them even if taken at the face value and

accepted in their entirety neither constitute criminal misconduct nor discloses guilty mind or dishonest intention and at best these were administrative decisions taken strictly as per the laid down procedure.

29. Whereas, in the instant case, firstly the petitioners are not government officials who are governed by the rules of business, conduct rules etc. and even otherwise those of the government officials who took the decisions are not before theCourt and secondly this is too premature a stage to conclude

that the instant is only a case of an administrative lapse,particularly when the prosecution has placed on record material to show that there was a building standing over theland in question, which as observed earlier is stated to have

been demolished that too allegedly in violation of CPWD Manual and its debris was not accounted for. In such scenario,it cannot be said that no case against the petitioners at this stage is made out. The commission of offence cannot be decided on affidavit evidence. This Court cannot adopt a short course of annihilating the still born prosecution by going into the plea of proof of prima facie case and give findings on merits.

1. No criminal offence is made out against the petitioner as the land has not been given to any individual but has been given to the Company that

too on lease.

30. The petitioner would then contend that no criminal offence is made out against the petitioners, as the land has not been given to any particular individual but has been given tothe company that too on lease.
31. I am afraid that even this contention cannot be accepted as the law as regards criminal intent and liability,really makes no distinction as to whether the land is given to an individual or a Company. Moreover, the entire case of the prosecution is based and founded upon the allegations that accused including the petitioners had connived with each

other and illegally demolished the building standing over the land in question and thereafter illegally encroached upon the said land. Moreover, the prosecution does not admit the status of the petitioner No. 1 in Cr.MMO NO. 285 of 2015 to be that ofa Company and this aspect of the matter is otherwise dealt with in the later part of the judgment.

एचपीसीए का पांचवा बिंदु ये था-:

1. As prosecution sanction against some of the officers had already been refused by the CentralGovernment and in case of certain individuals, the

State Government itself had not granted the prosecution sanction and that apart some of the officers who are the blue eyed boys of the government have been intentionally left out andnot arraigned as an accused, therefore, the prosecution proceedings cannot continue and  deserve to be quashed.

32. The petitioner would then vehemently contend that Central Government, in case of some of the accused, has already refused prosecution sanction and in some cases even the State Government has itself not granted prosecution sanction, therefore, in such circumstances the petitioners alone

cannot be made the scapegoats and compelled to stand trial.

The learned counsel for the petitioner would further vehemently argue that some of the officers who are the ‘blue eyed boys’ of the government have not even been prosecuted.

33. Suffice it to state that even this contention sans merit as all these questions can only be determined during the trial wherein the exact role and complicity of the petitioners visa-vis the so-called blue eyed boys or with those of the officials where prosecution sanction has been refused can be

evaluated and considered. Moreover, the mere fact that the Central Government has refused to accord sanction does not in any manner improve the case of the petitioners as they admittedly are not government servants and no prosecution sanction in their cases is otherwise required to be obtained.

34. That apart, many of the allegations against the petitioners are separate and distant from those leveled against the government servants and therefore even the principle of parity cannot be applied to their cases at this stage. Even otherwise the refusal of prosecution sanction to some of the

government officials will not by itself be an indicator of the petitioners innocence at this stage.

एचपीसीए का छठा बिंदु ये था-:

1. Since, the petitioner No. 1 is a Company, therefore,the provisions of Prevention of Corruption Act are not applicable.

35. Learned Senior Counsel for the petitioners would then vehemently argue that as the petitioner No. 1 i.e. HPCA is a Company, therefore, the provisions of Prevention of Corruption Act are not applicable to it and has placed strongreliance on the judgment of Hon’ble Supreme Court in National Small Industries Corporation Limited vs. State (NCT ofDelhi) and others (2009) 1 SCC 407, the relevant portions readsas under:-यहां पर कई जजमेंट्स साइट की गई हैं।

37. Obviously, there can be no quarrel with thepropositions as expounded in the aforesaid judgment but the moot question as to whether the ratio laid down therein has any applicability to the facts of the instant case.
38. The issue at this stage is whether the petitioner No.1 is a Company and is so admitted and accepted by the prosecution. The answer to this is obviously in negative as this very question is not only the subject matter of FIR No. 12/13

where this Court has refused to quash the proceedings arising out of this FIR and the matter is now admittedly sub judice before the Hon’ble Supreme Court. That apart, this very issue is pending adjudication before the learned Division Bench of this Court in CWP No. 8662 of 2013, titled Himachal Pradesh Cricket Association vs. State of Himachal Pradesh. Thus, in this factual background, the judgments relied upon by the petitioners are not at all applicable to the facts of the instant case.

एचपीसीए का आठवां बिंदु ये था-:

1. The instant case being an outcome of political vendetta cannot be permitted to continue.
2. As a last ditch effort, the petitioners would contend that the instant is a case of political vendetta which has been registered at the behest of the ruling party, more particularly, its Chief Minister and owes its genesis to the “Congress Chargesheet” that had been prepared by the ruling party at the time when it was in opposition. It is vehemently argued that on the basis of the charge-sheet the incumbent Chief Minister is nowpressurizing the authorities to register one case after the other against the petitioners and therefore the proceedings shouldbe quashed.
3. Even this contention is without merit, as it is more than settled that the allegations of mala fides of the informant are of secondary importance, after the information is lodged at the police station and offence is registered.
4. That apart, merely because prosecution has been initiated by the successor government, the same simply cannot be said to be an outcome of the political vendetta as there is nothing in law which can prevent the successor government in launching a prosecution provided there is justifiable and adequate evidence available for doing so. The prosecution then does not become vitiated on account of malafide or vendetta.इसके बाद सुप्रीम कोर्ट व बाकी अदालतों की जजमेंट्स साइट की गई हैं।

जजमेंट  में  कहा गया हैं कि No other points were raised.

51. In view of the aforesaid discussion, no ground for quashing of FIR or the charge-sheet is made out. Accordingly,there is no merit in these petitions and the same areaccordingly dismissed.
52. Interim order dated 24.9.2015 is vacated. However before parting, it goes without saying that any observation touching upon the merits of the case is purely for the purpose of deciding the question of quashing of the FIR in the chargesheet and shall, therefore, not be construed as an expression

on final opinion in the main matter or any other proceedings.

(Tarlok Singh Chauhan)

Judge

6th April, 2017

जजमेंट में शुरू से  मामले की पृष्‍ठभूमि का जिक्र इस तरह किया गया हैं-:

Justice Tarlok Singh Chauhan, Judge

Since common questions of law and fact arise forconsideration in these petitions, therefore, they were taken uptogether for hearing and are being disposed of by a common judgment.

2. All the petitioners are office bearers of the Himachal Pradesh Cricket Association (for short ‘HPCA’ i.e.Petitioner No. 1 in Cr.MMO No. 285 of 2015) and have sought quashing of FIR No. 14 of 2013, dated 3.10.2013, registered

under Sections 447, 201, 120-B IPC and Section 3 of Prevention of Damage to Public Property Act (for short ‘PDPP Act’) and Section 13 (2) of Prevention of Corruption Act (for short ‘PC Act’), wherein, HPCA alongwith other co-accused including the petitioners herein have been accused of illegally

encroaching upon the land comprising Khasra No.3673/3547/3335, measuring 720 sq. mtrs. situated in Mohal Civil

Station, Dharamshala (hereinafter referred to as ‘land in question’).

3. In addition thereto, they have also sought quashing of charge-sheet filed in the aforesaid case, which has now been registered as Case No. 14 of 2014 and is pending in the Court of learned Special Judge, Kangra at haramshala.
4. The aforesaid FIR emanates from a complaint madeby District Youth Services and Sports Officer, Dharamshala that HPCA has illegally encroached upon the land in question.

During inquiry, documents i.e. fard Jamabandi, tatima and demarcation etc. were taken in the earlier FIR No. 12/13, dated 1.8.2013, under Sections 420/406/120B/201 IPC and 13(2) of the PC Act, which revealed that a residential hostel/ accommodation comprising four sets existing on the above Khasra numbers was found to have been demolished by HPCA officials (the petitioners herein) in connivance with the government officials. The demolished material was also alleged to have been disposed of without it even being accounted for. The Inquiry Officer recommended registration of the case under the aforesaid sections.

5(a). It is the allegation of the prosecution that a meeting was held on 14-03-2008 by the Deputy Commissioner,Kangra at Dharamshala with the government officials and one representative of the HPCA i.e. Sanjay Sharma (petitioner inCr.MMO No. 355 of 2015). The meeting is alleged to have been

held without any written request or reference from any quarter.The proceedings of the meeting read thus:-

“Proceedings of the meeting held on 4.4.2008 at 4 pm under the chairmanship of Sh. K.K. Pant, I.A.S., Deputy Commissioner, Kangra at Dharamshala regarding

reallocation of government accommodation opposite cricket stadium at Dharamshala. The following were present: 1. Sub. Divisional Magistrate, Dharamshala; 2.Executive Engineer (PWD), Dharamshala; 3. Assistant Engineer (PWD), Dharamshala; 4. Principal Government College, Dharamshala; 5. Sanjay Sharma for HPCA. The meting was called in connection with the re-allocation

of the Type-IV accommodation of Government College, Dharamshala, situated opposite the Cricket Stadium, Dharamshala. It was discussed that the accommodation situated there are in very dilapidated condition besides these accommodation also pose security threat to the cricketers playing inside the

cricket stadium. After detail discussion the following decisions were taken:-

1. The Principal, Government College, Dharamshala will move an application to the Executive Engineer,PWD, Dharamshala for assessing durability of the

building.

2. The Principal, Government College, Dharamshalawith the help of Tehsildar, Dharamshala will identify a suitable land where quarters for government college

can be constructed.

3. It was further decided that he will also move a case to the Secretary, Education for allocating of funds for construction of new residential accommodation.

The Chairman assured the Principal, GovernmentCollege that he will extend cooperation to the college to get the funds allocated for the newresidential accommodation.

4. It was decided that existing occupants of the houses should apply for allotment of accommodation to the Deputy Commissioner, Kangra at Dharamshala and it was assured that they would be allotted accommodation in general pool

on priority basis.

5. It was also decided that HPCA should also extend financial assistance to the college authorities for the construction of accommodation elsewhere. The

meeting ended with the vote of thanks to the chair.

(Letter endst. No. 264652/MA, dated 14/3/08)”.

5(b). Further in the aforesaid meeting there was neither any  application/request from the two lecturers residing in the Type-IV accommodation that the said building was in dilapidated condition, nor had the HPCA ever reported that the said accommodation was a security threat to the players inside the cricket stadium. The interested party in the matter

was HPCA representative Shri Sanjay Sharma, who later on was

one of the promoter/Director of the so-called Company registered in the name and style “Himalayan Players CricketAssociation”, which was later on renamed as “Himachal Pradesh Cricket Association” with its headquarter at

Dharamshala, District Kangra and eventually got all the assets and liabilities of the HPCA (Society) transferred to the abovementioned HPCA under Section 25 of the Companies Act.

5(c). The building in question was adjacent to thecricket stadium main gate and in possession of Educationdepartment. The area of 49118.25 sq. mtrs. was initially transferred to the Department of Youth Services & Sports and later on leased out to HPCA on 29.07.2002. The Revenue department marked the land under this building with new Khasra No. 3547/3335/2/1.

5(d). The sole object of this meeting held on 14.3.2008 was to remove government building from the premises of the cricket stadium for which all the accused persons conspired with one another as the then Deputy Commissioner Shri K.K. Pant (Chairman of the meeting) neither gave any reference nor any noting sheet was got prepared for holding such a

meeting. That apart, the HPCA till date had not even submitted transfer/lease of this portion of land.

5(e). As per record procured from Superintending Engineer, 5th Circle, H.P.P.W.D., Palampur, the construction work of the building had started in the year 1979-80 and after completion of the building, the same was handed over to the Principal, Government College, Dharamshala in the year, 1986.

This building had been constructed out of the funds of University Grants Commission (for short ‘UGC Grants’) and alsofrom the contribution of the State Government. The cost of its construction at that time was approximately Rs.3,38,600.68/-.

5(f). In pursuance of the meeting held on 14.3.2008, in the office of Deputy Commissioner, Kangra at Dharamshala, the Assistant Engineer, P.W.D. No.1, Dharamshala, Shri Mahinder Chand Katoch, without following the proper

procedure, on the very next day sent a letter to the XEN,H.P.P.W.D., Dharamshala, wherein, it was stated that “It issubmitted that Type-IV quarter constructed opposite cricket stadium at Dharamshala are in very dilapidated condition and are beyond economical repair”. On 20.03.2008, the Principal,Government College, Dharamshala wrote a letter No. EDNGCD/UGCFlats/2008/2012, dated 20.03.2008 to the Director of

Higher Education, H.P., Shimla, stating that “A meeting was held in the D.C. office and the proceedings sent herewith for

your kind information and necessary action please.” ThePrincipal thereafter on 10.04.2008 wrote to the ExecutiveEngineer, H.P.P.W.D., Dharamshala, asking him to depute his official and make available a report on assessment and the safety status of the teachers’ flats though there was no complaint by the lecturers residing in the building. Though this letter was written after 25 days of the assessment of the status whereas the S.D.O., P.W.D., had already given the status report of this building on the very next date of the meeting

without there being any request made by the Principal. Thereport did not contain any technical reason under which thebuilding could have been declared ‘unsafe’. The Principal ofthe Government College thereafter vide his letter dated19.04.2008 requested the Director, Higher Education for

providing funds/budget for construction of newaccommodation.

5(g). On June 8, 2008, the Principal Secretary (YSS) addressed a letter to the Principal Secretary (Education) to the Government of H.P. regarding lease of land for HPCA on the ground that the Association intended to get the land in

question leased out in their favour. It was further intimated that the land in question was government land and was still in the

possession of the Education department. It was further pointed out that this piece of land could not be transferred to thedepartment due to the reason that the structure belonging tothe Education department existed over it, however, still the YSSasked for N.O.C.

5(h). The N.O.C. issued by the Secretary, Higher Education, allowing transfer of land to the YSS department,which was ultimately leased out to the HPCA for the construction of the cricket stadium had imposed the following

conditions:-

1. a) Sufficient land should be spared in the vicinity of land of the present UGC accommodation for future construction of staff quarters.
2. b) College should have free and unconditional access for the use of Cricket Stadium for College students.
3. c) The Stadium should have independent approach so that during college hours there is no disturbance to the normal instructional work and study of students etc.

5(i). Eventually the government of Himachal Pradesh granted N.O.C. for the transfer of the land in question subject to the following conditions:-

1. a) Suitable land is allotted by the Deputy Commissioner, Kangra at Dharamshala for construction of staff quarters.

1. b) Alternate accommodation is provided to the allottee who is staying in the residential quarters.

5(j). The NOC was approved from the Education Minister on 19.11.2008. The land in question was transferred in the name of the YSS from the Education Department vide mutation No. 1469. On 25.11.2008, the Sub Divisional Magistrate intimated that the Education department had been provided

with alternate land in lieu of 720 sq. mtrs. transferred to the YSS.

On 20.5.2009, the then Principal, Government College,Dharamshala, asked the Electricity department to disconnect the energy meters installed in the building , which by now hadbeen vacated by the two lecturers.

5(k). In the year 2009-10, the HPCA engaged twocompanies, namely, Ria Constructions Ltd. and A.N.S. Ltd. For the construction work of indoor stadium and that of area between main gate and the practice area. Since, the land in question was between indoor stadium and the main stadium ,therefore, HPCA had illegally trespassed over the said land. The photographs from official record of Ria Construction Ltd.

showed that the building existed during that period and the

area on which the demolished building existed was now in

possession of the HPCA and situated quite adjacent to the

main inner gate of the cricket stadium.

5(l). The land occupied by HPCA was got demarcated from the Revenue department on the basis of which it was established that government land measuring 3073.16 sq. mtrs including 720 sq. mtrs upon which the demolished building existed had been encroached by the HPCA in connivance with each other and with the government officials.

6. As observed earlier, on completion of the investigation the prosecution has already presented the charge-sheet in the Court of Special Judge, Kangra atDharamshala.

(9)