Revenue authority can not refuse to issue property extract of a property even if an offence is registered in respect of its transaction

It is also stated in Status Report that it was also found during investigation that SGCT Mohinder Singh has purchased land measuring 5 ½ Marlas under Khasra no.497 min situated at Barnai, Jammu, from one, Kiran Bala daughter of Hans Raj resident of Barnai, Bantalab, Jammu, in the year 2012 and sale deed had been executed in favour of alleged accused, Mohinder Singh, for sale consideration of Rs.3.85 Lacs, which was also mutated in his favour. The matter was taken up with Tehsildar North, Jammu, asking him not to allow alienation of the above landed property till further communication from Investigating Agency. Respondents maintain that when accused, Mohinder Singh, became aware about initiation of enquiry, he sold aforesaid piece of land to one, Tanveer Malik (petitioner herein) for Rs.4,68,875/-. The statement of OWP no.1404/2017 IA no.01/2017 witnesses was recorded under Section 161 and 164-A Cr.P.C. Besides, the amount collected by accused, Nirmal Kour and Mohinder Singh, from depositors by way of cheating and fraud, is required to be recovered from them, for which all efforts are being made by respondent and that the investigation of the case is in progress. Thereafter, again on 8 th August 2019 respondent no.2 filed Status Report reiterating the averments made in earlier Status Report and nothing new emerges therefrom.[Para No.5]

  Respondents 1&3 (Revenue Department) have filed their objections, asserting therein that FIR no.23/2014 police Station Crime Branch, Jammu, has been lodged against Nirmal Kour and Mohinder Singh, who have sold the land to petitioner. Respondents have made reference of communication no.CBJ/FIR-23/14/21078 dated 21st December 2015, in which they were asked not to allow alienation of land measuring 5 ½ Marlas falling under Khasra no.497 min situated at Barnai, Jammu, and make necessary entry in this regard in revenue records. Respondents 1&3 maintain in their Reply that petitioner was in possession of land in question, mutated in his favour, prior to filing of complaint against seller/vendor and, therefore, petitioner had purchased the land in question legally and was holding its possession peacefully. However, in view of communication dated 21st December 2015, received from Zonal Headquarters, Crime Branch, Jammu, issuance of revenue papers (Fard) has been withheld as respondents have no option but to withhold issuance of revenue paper in order to carry out the directions received from Crime Branch.[Para No.6]

    Petitioner has purchased land in question by way of a Sale Deed. The said Sale Deed has been registered by registering authority, viz. Sub Registrar, Jammu, on 9th July 2014. Registration of a document, in the present case is a Sale Deed, is a final seal to a document to be implemented and carried in revenue records. From the file as also from the Reply, filed by respondents 1&3, it is evident that mutation has been effected in compliance of registration of aforesaid Sale Deed and necessary entries have been made in revenue records by Revenue Department. Neither Sale Deed nor is Mutation under challenge before any court of law and therefore, the same has attained finality.[Para No.8]

    In addition to this, perusal of Reply reveals that respondents 1&3 have categorically stated that petitioner was in possession of land in question, mutated in his favour, prior to filing of complaint(s) against seller/ vendor and that petitioner has purchased the land in question legally and was holding its possession peacefully. Once that being the position, issuance of impugned direction contained in communication dated 21 st December 2015, amounts to infringement of constitutional and statutory rights of petitioner. He has purchased the land in question by way of a valid document. Preventing him from enjoying the property amounts to infringement of his constitutional rights as guaranteed under Article 300A of the Constitution of India and a human right as well. Petitioner has every right to obtain revenue excerpts with respect to his aforesaid landed property as also to alienate it in accordance with laws and rules regulating the field.[Para No.9]

Accused can use prosecution's evidence to establish his defence without adducing his evidence

In Periasami and Another v. State of T.N.; 1996 (6) SCC 457, accused, two in number, were alleged to have attacked the deceased. Though the Sessions Judge acquitted the accused, the High Court convicted the two appellants under Section 302 read with Section 34 IPC and another accused under Section 324 IPC. This Court found that the injuries were caused by the appellant with lethal weapons. Dealing with the contention that offence would not be above 304 Part I, the Court noted that though the right of private defence was not set up under Section 313 Cr.PC., absence of such a plea would not stand in the way of the defence based on the exception being set up was the contention taken by the appellant. The Court noted as follows:

“17. While dealing with the said alternative contention we have to bear in mind Section 105 of the Evidence Act, 1872. A rule of burden of proof is prescribed therein that the burden is on the accused to prove the existence of circumstances bringing the case within any of the exceptions “and the Court shall presume the absence of such circumstances”. The said rule does not whittle down the axiomatic rule of burden (indicated in Section 101) that the prosecution must prove that the accused has committed the offence charged against. The traditional rule that it is for prosecution to prove the offence beyond reasonable doubt applies in all criminal cases except where any particular statute prescribes otherwise. The legal presumption created in Section 105 with the words “the Court shall presume the absence of such circumstances” is not intended to displace the aforesaid traditional burden of the prosecution. It is only where the prosecution has proved its case with reasonable certainty that the court can rest on the presumption regarding absence of circumstances bringing the case within any of the exceptions. This presumption helps the court to determine on whom is the burden to prove facts necessary to attract the exception and an accused can discharge the burden by “preponderance of probabilities” unlike the prosecution. But there is no presumption that an accused is the aggressor in every case of homicide. If there is any reasonable doubt, even from the prosecution evidence, that the aggressor in the occurrence was not the accused but would have been the deceased party, then benefit of that reasonable doubt has to be extended to the accused, no matter he did not adduce any evidence in that direction.
18. The above legal position has been succinctly stated by Subbarao, J. (as he then was) in a case where an accused pleaded the exception under Section 84 IPC (Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [AIR 1964 SC 1563 : (1964) 2 Cri LJ 472]):
“The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Penal Code, 1860. This general burden never shifts and it always rests on the prosecution. … If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of ‘prudent man’ the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself.”[Para No.11]

    We, therefore, have no hesitation in holding that a statement made by the accused under Section 313 Cr.PC even it contains inculpatory admissions cannot be ignored and the Court may where there is evidence available proceed to enter a verdict of guilt. In the aforesaid case he specifically stated that he murdered his wife with a Kunda and not with Phali. The Court noted further that there was no merit in the defence sought to be set up under Section 84 of the penal code. However, the Court noted as follows:

16. …..However, we have noticed that the accused had adopted another alternative defence which has been suggested during cross-examination of prosecution witnesses i.e. his wife and PW 2 (Ramey) were together on the bed during the early hours of the date of occurrence. If that suggestion deserves consideration we have to turn to the question whether the benefit of Exception I to Section 300 of the IPC should be extended to him?

17. The law is that burden of proving such an exception is on the accused. But the mere fact that the accused adopted another alternative defence during his examination under Section 313 of the CrPC without referring to Exception I of Section 300 of IPC is not enough to deny him of the benefit of the exception, if the Court can cull out materials from evidence pointing to the existence of circumstances leading to that exception. It is not the law that failure to set up such a defence would foreclose the right to rely on the exception once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability.

18. In the above context, we deem it useful to ascertain what possibly would have prompted the accused to kill his wife. The prosecution case as noted above, is that the accused was not well- disposed to his wife as she was always speaking against his drinking habits. We are inclined to think that, while considering the manner in which he had suddenly pounced upon his young wife who bore two children to him and smashed her head during the early hours, he would have had some other strong cause which probably would have taken place within a short time prior to the murder. Certain broad features looming large in evidence help us in that line of thinking.”[Para No.14]