IMPORTANT POINT
A public servant's actions performed in the course of official duties may not require sanction for prosecution if the alleged offences are unrelated to those duties.

JUDGMENT :

1. RULE returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent – State.

2. By way of this application, the applicant seeks to challenge the legality and validity of the order dated 23.06.2023 passed by the learned Chief Judicial Magistrate, Panchmahal, whereby the learned trial Court Judge rejected the application – Exhibit 34 which was submitted in Criminal Case No.3036 of 2010, praying discharge qua the First Information Report (FIR) registered with Vejalpur Police Station, Taluka Kalol, Panchmahal as C.R. No.I-12 of 2010, filed on 07.02.2010, for the offences punishable under Sections 120B, 465, 467, 468, 471, 406, 420 and 114 of the Indian Penal Code (IPC).

3. The charge-sheet came to be filed to the facts that the father of the first informant, deceased – Jethabhai Khoyabhai, is the uncle of Vankar Dahyabhai Khoyabhai, the aunts – Pashiben and Laliben who are the co-owners of the ancestral land bearing Survey No.116/1 situated at Village Jitpura, District Panchmahal. As per the allegations, the accused No.4, i.e. Abdullah Haji Abdulrehman Batook in collusion with the other accused purchased the said land by Registered Sale Deed dated 25.02.2008.

The allegations are to the effect that the Sale Deed which came to be executed is forged and also the photographs of Pashiben and Laliben affixed on the Sale Deed and the thumb impression are forged and fabricated. The allegations are of hatching conspiracy to grab the land from the first informant and his maternal aunts at the instance of the main accused. Two women have been impersonated and co-accused posed themselves as Pashiben and Laliben, and thereby, have created false document of Sale Deed.

4. Learned Advocate Mr. Sunil S. Joshi submitted that the present applicant was serving as a Sub-Registrar, Godhra at the time of registration of Sale Deed. It is submitted that the applicant as a Sub-Registrar would have a duty to verify the documents and the identity of the persons, as per the provisions of law and the Rules framed by the State Government and further has to follow the Notifications issued by the Government time to time.

5. It is further submitted that the Exhibit 34 was preferred under Section 239 of the Cr.P.C. to discharge him from the criminal case since no criminality could be drawn, as the facts on record suggest that the applicant had been discharging his official duties on the date of registration, i.e. 25.02.2008 as per the Registration Act, 1908 (hereinafter referred to in short as ‘the Registration Act’). It is further submitted that provisions of the Act are followed and more particularly, the provisions of Section 32A, 34 and 52 were complied with. It is also submitted that the Registrar has to make enquiry as per law but has not to perform as an Investigating Officer.

6. Referring to the Notification dated 08.06.2010 issued by the Stamp and Registration Department, Gandhinagar, it is submitted that the necessity of asking for authenticated proof of identity with photographs of the buyer, seller and attesting witness was given for the very first time through that Notification dated 08.06.2010 while the Sale Deed was registered on 25.02.2008. It is also submitted that the Police was required to seek the approval of, the Government and the concerned Department, prior to filing of the FIR and ought to have verified the fact whether the Notification of the relevant time and date was followed by the applicant or not.

7. Learned Advocate Mr. Sunil S. Joshi has referred to the Notification of the Revenue Department dated 09.11.2015, which shows that a representation was moved by the Gujarat State Registration Department, falling under the Revenue Department to bring to the notice of the Government regarding registration of the FIR against the Sub-Registrar without any verification of the truth. It is also submitted that this Notification appears to have come into effect because of the oral order of