Rajasthan High Court - Jodhpur
Smt Kiran Maheshwari vs State & Anr on 22 January, 2018
Author: Sandeep Mehta
Bench: Sandeep Mehta
1
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2136 / 2017
Smt. Kiran Maheshwari W/o Dr. Satya Narayan Maheshwari, Aged
About 53 Years, Resident of 457, Ambamata Scheme, Udaipur.
----Petitioner
Versus
1. State of Rajasthan Through the Public Prosecutor.
2. Jitendra Kumar Khateek S/o Nanu Ram Khateek, Resident of
Kumariyakheda, Nathdawara, District Rajsamand.
----Respondents
_____________________________________________________
For Petitioner(s) : Dr. Sachin Acharya
For Respondent(s) : Mr. M.S.Panwar, PP and respondent no. 2 Mr.
J.K.Khatik present in person.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order Date of Judgment 22/1/2018 Reportable By way of this petition under Section 482 Cr.P.C., the petitioner Smt. Kiran Maheshwari has approached this Court seeking quashing of the F.I.R. No. 170/2017 registered at P.S. Rajnagar for the offences under Sections 420, 467, 468 and 120B IPC.
The respondent complainant lodged the above F.I.R. at P.S. Rajsamand against the present petitioner and Sh. Brijmohan Bairwa, the then A.D.M., Rajsamand(Returning Officer) through a complaint filed before the C.J.M. Rajsamand who forwarded the same to the Police Station Rajsamand for investigation under Section 156(3) Cr.P.C. Thereupon the above mentioned F.I.R. came to be lodged and investigation was commenced.
(2 of 13) [CRLMP-2136/2017] It is interalia alleged in the F.I.R. that the petitioner Smt. Kiran Maheshwari was wrongly declared elected as member of the Legislative Assembly from Rajsamand constituency as the nomination form submitted by her was fraudulently accepted by the Returning Officer. As per the complainant, the nomination form of the petitioner was accepted by the Returning Officer even though large number of discrepancies existed therein and the entire process of acceptance of the nomination form was manipulated at the petitioner's instance and under her influence. The complainant further alleged that he had submitted a complaint to the S.P. Rajsamand with these very allegations on 27.3.2017 raising a grievance that the interpolation was made in the nomination form by ante timing and the same was shown to be accepted whereas in the original nomination form, the copy whereof complainant claims to have received under the Right to Information Act, the said endorsement of acceptance was missing. The complainant annexed with the complaint, both copies of the nomination forms; one allegedly received by him under the R.T.I. Act, wherein no endorsement of acceptance is marked and the other received later wherein the said endorsement was introduced by way of the alleged interpolation. As per the complainant, the petitioner Smt. Kiran Maheshwari was elected as a Member of Legislative Assembly by manipulating the pre-election process. The petitioner Smt. Kiran Maheshwari has approached this Court for assailing the above F.I.R. through this misc. petition filed under Section 482 Cr.P.C.
Dr. Sachin Acharya, learned counsel representing the (3 of 13) [CRLMP-2136/2017] petitioner vehemently urged that ex-facie, the allegations set out in the impugned F.I.R. do not disclose the necessary ingredients of the offences alleged so as to justify continuance of investigation thereof and that the same was lodged with the intention of wreaking vengeance and as a political vendetta. He urged that gazette notification of the questioned election was issued on 5.11.2013 and the last date of submission of nomination forms was 12.11.2013. The petitioner submitted her nomination papers on 11-11-2013 in two sets which were entered at S.No. 5 and 6 in the requisite register maintained by the Returning Officer. As per the directions issued by the Chief Election Officer, the Returning Officers were required to upload details of all nominations along with the affidavit submitted by the candidates by 6'o clock on the very day of submission. The nomination form submitted by the petitioner on 11.11.2013 was uploaded on the Election Commission's portal on the very same day, it could not bear the endorsement of acceptance or rejection because scrutiny of nomination forms was scheduled on 13.11.2013. After scrutiny, four candidates including the petitioner were found eligible to contest the election from Rajsamand constituency and the list of eligible candidates was uploaded on the portal of the Election Commission immediately thereafter. Dr. Acharya urged that as a matter of fact, the so called discrepancy regarding the endorsement of acceptance in the nomination form is a creation of the complainant who himself, being a practising advocate has deliberately misused the copy of the petitioner's nomination form downloaded on the very day it was uploaded on the net before (4 of 13) [CRLMP-2136/2017] scrutiny was made and before acceptance was marked thereupon. As per Dr. Acharya, the entire gimmick of the complaint is aimed for gaining political mileage and nothing beyond that. He drew the Court's attention towards the proceedings of Writ Petition No. 1752/2017 filed by the complainant in this Court for challenging the election of the petitioner wherein a prayer was made for rejection of the petitioner's nomination form. As per Dr. Acharya the said writ petition was rejected by this Court vide order dated 1.3.2017 holding that the only remedy available to the writ petitioner (complainant herein) was to file an election petition under the provisions of The Representation of People Act, 1951. The complainant did not rest satisfied with the said order and filed a D.B.Writ Appeal No. 287/2017 against the said order which too was dismissed by the Hon'ble Division Bench on 6.4.2017. The Division Bench also observed that the complainant could challenge the election of the petitioner herein only by filing an election petition under The Representation of People Act while rejecting the appeal.
He pointed out that the petitioner challenged order passed by the C.J.M. whereby the complaint of the respondent was forwarded to the police for investigation under Section 156(3) by filing a Cr. Revision No. 52/2017 in the Sessions Court but withdrew the same reserving her right to take recourse of the appropriate remedy against the F.I.R. Thereafter the instant misc. petition came to be preferred. Learned counsel Dr. Acharya vehemently urged that ex-facie, even if the allegations levelled in the F.I.R. are accepted to be true on the face of record, apparently (5 of 13) [CRLMP-2136/2017] no offence whatsoever is made out therefrom so as to justify the registration thereof. He urged that even if the complainant's allegations are accepted in their entirety, wrongful acceptance of a nomination paper would not be covered by any offence under the Indian Penal Code. He further urged that the S.H.O. Rajnagar submitted a factual report dated 23.5.2017 before the Sessions Judge, Rajsamand in the above mentioned revision after making a thorough enquiry and it is clearly indicated therein that the copy of the disputed nomination form sans the endorsement of acceptance, which the complainant harps upon was as a matter of fact obtained from the Election commission's website before the nomination papers were scrutinized. He thus urged that the misc. petition is fit to be accepted and the impugned F.I.R. and all consequential proceedings sought to be taken thereunder deserve to be quashed in entirety.
Learned P.P., submitted the I.O.'s factual report dated 23.11.2017 wherein it is mentioned that the further proceedings of the impugned F.I.R. had been stayed by this Court and thus investigation could not proceed.
The complainant, Mr. Jitendra Kumar appeared in person and vehemently and fervently opposed the submissions advanced by Dr. Acharya. He urged that the petitioner conspired with the Returning Officer and managed to get the antedated endorsement of acceptance marked in her nomination form and the same amounts to a sheer interpolation in public record. In the original nomination form of the corresponding date provided to the complainant under the R.T.I. Act, there was no endorsement of (6 of 13) [CRLMP-2136/2017] acceptance. The said endorsement was added posteriorly in order to unduly benefit the petitioner who managed to secure a victory in the election even though her nomination form had never been accepted upto the schedule date because it was deficient in numerous aspects. In support of his contentions, Sh. Jitendra Kumar placed reliance on the Hon'ble Supreme Court decision in the case of HDFC Securities Ltd. & Ors. Vs. State of Maharashtra being Cr.Appeal No. 1213 of 2016 [(arising out of S.L.P.(Crl.) No. 1913 of 2012)] decided on 9.12.2016 and implored the Court to reject the instant misc. petition and to direct the I.O. to conduct thorough and expeditious investigation of the case.
Learned Public Prosecutor supported the complainant's submissions.
I have given thoughtful consideration to the arguments advanced by the petitioner's counsel, the complainant as well as the learned P.P. and perused the impugned F.I.R. as well as the documents placed on record by the petitioner as well as the complainant and have respectfully perused the judgment relied upon by the complainant in support of his prayer to reject the petition.
The admitted and highest allegation as set out by the complainant in the impugned F.I.R. is that the nomination form submitted by the petitioner was defective on numerous counts and and that did not bear endorsement of acceptance which was manipulated by ante-timing by using influence upon the Returning Officer Mr. Brijmohan Bairwa, the then ADM, Rajsamand who (7 of 13) [CRLMP-2136/2017] conspired and indulged in the illegal acts at the petitioner's instance. Suffice it to say that even if the allegations of the complainant are accepted as being true on the face of the record, obviously the same would not constitute the necessary ingredients of the offences of cheating or forgery by any stretch of imagination. The complainant has not set up a case that he too contested the election and that because of the so called wrongful acceptance of the nomination paper of the petitioner any wrongful loss was caused to him or to any other person for that matter. Even if the complainant's allegations are accepted as such, apparently by the so called offending act, the petitioner never induced the complainant or anyone else to part with any valuable security etc. nor was any wrongful loss caused to the complainant or to any other person within the meaning of Sections 415/420 IPC. Thus, ex-facie the allegations of the complaint do not constitute the requisite ingredients of the offence under Section 420 IPC. For the allegations set out in the F.I.R. to constitute the offences under Sections 467, 468 & 471 IPC, the complainant would first be required to establish that a false document was prepared within the meaning of Section 464 IPC which reads as under:-
"464 Making a false document. --[A person is said to make a false document or false electronic record-- First --Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(8 of 13) [CRLMP-2136/2017]
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d)makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly --Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly --Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]"
From a bare reading of the said provision, it is apparent that neither the petitioner nor the Returning Officer can be held liable for preparing a false document within the meaning of Section 464 IPC so as to justify registration of the impugned F.I.R. for the offences under Section 467, 468 & 471 IPC. The marking of acceptance on the nomination form is an act required to be performed by the Returning Officer while discharging his lawful duty under the provisions of Representation of the People Act after scrutiny and as such, even if it is assumed for a (9 of 13) [CRLMP-2136/2017] moment that the endorsement of acceptance was posteriorly marked by the Returning Officer (on the petitioner's nomination form), the said act cannot be brought within the purview of the offence of forgery so as to justify the petitioner's prosecution in this case. Neither any false document was prepared nor used by anyone in the election process. Ratio of the Supreme Court decision in the case of Mohd. Ibrahim Vs. State of Bihar reported in (2009) 8 SCC-751 puts this issue beyond the pale of doubt that the Returning Officer did not commit the offences of fraud and forgery while making the note of acceptance on the petitioner's Nomination Form.
Representation of the People Act is a special law which provides a specific mechanism to challenge the election of a returned candidate. Section 100 of the Act reads as below:-
"100. Grounds for declaring election to be void.--1[ (1)Subject to the provisions of sub-section (2) if 2[the High Court] is of opinion--
(a)that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [or the Government of Union Territories Act, 1963 (20 of 1963)]; or
(b)that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c)that any nomination has been improperly rejected; or
(d)that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i)by the improper acceptance or any nomination, or (10 of 13) [CRLMP-2136/2017]
(ii)by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent], or
(iii)by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv)by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void.] If in the opinion of [the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but [the High Court] is satisfied--
(a)that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and 8[without the consent], of the candidate or his election agent;
(c)that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d)that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then 12[the High Court] may decide that the election of the returned candidate is not void.
Section 80 of the Act of 1951 makes it clear that no election shall be called in question except by an election petition except by provisions of Chapter 2 of the Act. Improper acceptance of nomination is one of the grounds on which the election can be challenged as provided in Section 100(d)(i) of the Act. The Election Officer/Returning Officer is protected from facing any prosecution regarding any act or omission done while discharging his/her obligations under the Representation of People Act. Thus, apparently the Returning Officer cannot be prosecuted in connection with the impugned F.I.R. lodged by the complainant as such prosecution is barred by law. The principal allegation of the complainant regarding the so called tampering in the nomination paper is against the Returning Officer. Since the prosecution of the Returning (11 of 13) [CRLMP-2136/2017] Officer is prohibited by law, obviously as a necessary consequence the petitioner being the returned candidate can by no means be prosecuted for the very same allegations. Furthermore the complainant has failed to satisfy the Court that the result of election was materially effected by the improper acceptance of the petitioner's nomination form. Manifestly the complainant's allegations are totally frivolous and are aimed at wreaking vengeance and nothing beyond that.
The Supreme Court judgment cited by the complainant (in the case of HDFC Securities Ltd. Vs. State of Maharashtra (supra)) lays down that the inherent powers conferred upon the High Court by Section 482 Cr.P.C. should be sparingly used to quash the prosecution at inception. It is a settled canon of law as has been held by Hon'ble Supreme Courts in catena of decisions. Thus the principles laid down in the said judgment have definitely to be borne in mind before exercising inherent powers conferred upon this Court by Section 482 Cr.P.C. while entertaining a challenge laid to an F.I.R. at its inception. However, on facts, the said judgment has no bearing whatsoever on the present controversy because in that case, the accused had challenged the order passed by the Magistrate whereby the complaint was forwarded to the police for investigation under Section 156(3) Cr.P.C. In the present case, the petitioner has challenged the F.I.R. registered pursuant to the said direction of the Magistrate claiming that the same does not disclose ingredients of any cognizable offence and that there is a legal bar against registration of the F.I.R. It may be noted that the complainant unsuccessfully tried to challenge the petitioner's election by filing the above mentioned writ petition as well as special appeal in this Court on the very (12 of 13) [CRLMP-2136/2017] same grounds and failed miserably. While rejecting both the matters; this Court categorically observed that the complainant, if he so desired, could challenge the election of the petitioner by filing an election petition. However, rather than doing so, and by circumventing due process of law the complainant has tried to misuse the process of criminal law for upturning the petitioner's election.
Eschewed from the above mentioned legal impediments against registration of the impugned F.I.R., I have also examined the merits of the matter. The highest allegation of the complainant in the F.I.R. is that the petitioner conspired with the returning officer and an antedated endorsement of acceptance was marked on the petitioner's nomination form which was deficient. As per the complainant, such note of acceptance was not existing in the original form, copy whereof was provided to the complainant under Right to Information Act. From the admitted documents as available on record, it is apparent that nomination form was submitted by the petitioner on 11.11.2013. Last date of acceptance of nomination papers was fixed as 12.11.2013 and the scrutiny of papers was scheduled on 13.11.2013. Thus, the endorsement of refusal or acceptance could only be made thereafter. The documents were uploaded on the portal of the Election Commission after 6 P.M. on the very day of submission. The complainant has failed to point out the existence of any such discrepancy in the petitioner's nomination form which could make it invalid or unfit to be accepted. The complainant has, in all probabilities tried to play foul by misusing a copy of the (13 of 13) [CRLMP-2136/2017] nomination form submitted by the petitioner on 11.11.2013 after downloading the same from net and he appears to have stage managed this frivolous prosecution by portraying the so called variation in the nomination forms regarding the note of acceptance which was bound to exist in the natural course of events because the acceptance was marked on the petitioners nomination form by Returning Officer on 13.11.2013.
In view of these facts, on merits as well, this Court is of the firm opinion that the complainant's allegations are concocted and cooked up, hence, allowing investigation of the F.I.R. under challenge to be continued would be nothing short of gross abuse of the process of criminal law. The impugned F.I.R. has apparently been lodged with the sole intention of wreaking vengeance and by way of political vendetta and nothing else and is a glaring example of misuse of criminal law.
Consequently, this Court is of the firm opinion that it is a fit case for exercising inherent powers conferred upon it by Section 482 Cr.P.C. so as to quash the impugned F.I.R.
Hence, the instant misc. petition filed on behalf of petitioner Smt. Kiran Maheshwari is allowed. The impugned F.I.R. 170/2017 registered at P.S. Rajnagar for the offences under Sections 420, 467, 468 and 120B IPC and all subsequent proceedings sought to be taken thereunder are hereby quashed. The stay application stands disposed of.
(SANDEEP MEHTA),J.
/sushil/