Uttarakhand High Court
Sukhvinder Singh vs State Of Uttarakhand And Others on 5 December, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No. 1463 of 2022
(Under Section 482 of Cr.P.C.)
Sukhvinder Singh ... Applicant
Vs.
State of Uttarakhand and Others ... Respondents
Advocate: Mr. S.K. Mandal, Advocate, for the applicant.
Mr. Ranjan Ghildiyal, Assistant Government Advocate, for the
State
Hon'ble Sharad Kumar Sharma, J.
Before answering the laudable arguments, which had been extended by the learned counsel for the applicant, few factual backdrops of the instant case are necessarily required to be considered in the context of the authorities, which are being relied by the learned counsel for the applicant, in support of his contention, as to whether, in the given set of circumstances, the authorities relied with, at all have any relevance.
2. The genesis of the fact are, that an FIR, being FIR No. 2 of 2019, was got registered at Police Station, Mallital, District Nainital on 10th January 2019, for the alleged commission of offences under Sections 420, 467, 468, 471 of IPC, which are said to have chanced in relation to the events in relation to the offences which are said to have chanced between the period from 27th December 2018 to 18th January 2019. The FIR thus registered contained a narration of set of allegation to the effect, that certain named accused persons in the FIR, were found to be instrumental in 2 getting fraudulent documents for the University, prepared maliciously to be utilised for the purposes of alluring the probable candidates, for procuring their employment in foreign countries and all these documents, which were thus produced in support of their claim for appointments, were ultimately found to be fraudulent documents, which were not even issued by the University, under its authority, nor it was even ever stamped by the University and hence, the complainant, who was then the employee of the University has recorded in the FIR, contending thereof that such documents, which has been relied by the named accused persons therein, were fraudulent documents; they were not issued by the University nor it was stamped by it.
3. The applicant is not the named accused person, and this is the benefit, which he intends to derive that since when he is not a named accused person in the FIR, he couldn't have been roped up to be tried in an offence, where there is no direct set of allegations which had been leveled against him and particularly, when his name was for the first reflected in the Chargesheet No. 2 dated 29th August 2021, which was submitted by the Investigating Officer, in which the statement of one Karamjit Kaur, which was recorded under Section 161 of CrPC, has disclosed the name of the present applicant, as to be a person who was said to be involved in the commission of offence of preparation of fraudulent documents on the basis of which the recruitments were being offered to be given 3 to the different persons, who were the aspirants to be appointed in the foreign countries.
4. The contents of the Chargesheet, which is rather based upon the said disclosure of name of the present applicant by the statement of the co-accused person recorded under Section 161 of CrPC by Smt. Karamjeet Kaur, the name of the present applicant has been roped up in the commission of offence, for which the cognizance order has been issued on 5th April 2022, by the Court of Chief Judicial Magistrate, in Criminal Case No. 453 of 2022, State Vs. Karamjit Kaur and one another. It is these two documents, i.e. the Chargesheet and the summoning order, which has been put to challenge by the present applicant; along with the entire criminal proceedings of Criminal Case No. 453 of 2022, State Vs. Karamjit Kaur and one another, which was thus arising out of the aforesaid FIR.
5. The learned counsel for the applicant has argued the present C482 Application from various perspectives and the sequence of the perspective of his arguments, the reference would be required to be made under Section 27 of the Indian Evidence Act, on which a heavy reliance has been placed by the learned counsel for the applicant, that in view of the principles laid down by the provisions contained under Section 27 of the Indian Evidence Act, as to whether the applicant could at all be summoned to be tried for the criminal offence, merely because of the disclosure of his name 4 from an information received from a person who is co- accused of any offence. Section 27 of the Indian Evidence Act is extracted hereunder:-
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
6. This Court is of the view, if the simpliciter language of Section 27 of the Indian Evidence Act, is taken into consideration, though it does perceives as to whether on the basis of the statement of a co-accused person if there is disclosure of a name by a co-accused, that cannot be exclusively taken as to be the basis for roping a person for his alleged involvement in commission of offence. But, there is a marginal difference in the interpretation as it has been given by the learned counsel for the applicant to the provisions of Section 27 of the Indian Evidence Act. It is not an absolute provision, which is absolutely creating a restraint that even if there is a positive disclosure by co-accused in his or her statement recorded under Section 161 of CrPC of involvement of an accused person in commission of offence, Section 27, that in itself does not create an absolute bar, because when the legislature has used the word "how much of the information received from the accused may be proved", the very language used under Section 27 is that, it is exclusively within the domain of the trial Court, to consider as to on what manner the statement which has been recorded by a co-accused it has to be 5 taken into consideration in order to rope a person for his involvement in commission of the offence and hence Section 27 of the Indian Evidence Act, cannot be construed at all as to be creating an absolute bar that no person who has been named by a co-accused person, could be summoned for commission of an offence. As the, thus named accused person cannot get an immunity, from being tried for the offences, where his or her name is disclosed by co accused persons.
7. Apart from it, for the purposes of better elucidation of the arguments, which has been extended by the learned counsel for the applicant in the context of Section 27 of the Indian Evidence Act, it couldn't be better appreciated in the absence of the statement recorded by the co-accused Karamjit Kaur, itself be placed on record as to under what set of allegations or circumstances as levelled by her under Section 161 of CrPC, could be derived to be interpreted to attract to summon the present applicant for his involvement in commission of the offences, when the name was disclosed by her during the course of the investigation. Thus, the arguments pertaining to Section 27, is not acceptable by this Court, for the reason that Section 27 is not creating an absolute bar for the Court by way of an absolute restraint to summon an accused person, whose name has been later on disclosed by a co- accused person and secondly, because to substantiate the argument in the context of Section 27 of the Indian Evidence Act, it becomes imminent for the applicant to have substantiated his argument by placing the 6 statement, which was recorded by the co-accused Smt. Karamjeet Kaur, under Section 161 of CrPC on record, which he contends, that since the stage of trial has not reached to stage of Section 207, he is not in a position to place reliance on the statement recorded under Section 161 of CrPC, in order to substantiate his argument in the context of his arguments in relation to Section 27 of the Indian Evidence Act.
8. Since the provisions contained under Section 27 of the Indian Evidence Act, itself will have its implications, when the applicant puts in appearance before the learned trial Court in response to the summoning order and when the trial reaches to the stage under Section 207, when he is handed over with the statement recorded under Section 161, the applicant would not at all be deprived of his rights to have his defense in the context of the provisions contained under Section 27 of the Indian Evidence Act, when the trial itself proceeds on merits, and in that eventuality, this would not be an apt stage for the Court, to venture into that aspect about the effect of Section 27 of the Indian Evidence Act, qua the proceedings, which had been drawn against the present applicant as a consequence of issuance of the summoning order. Hence, this question argued by the learned counsel for the applicant is answered in negative against him.
9. The learned counsel for the applicant has further submitted, that he couldn't have been summoned by the trial Court, for the reason being, that what would 7 have been the ordinarily place of commission of offence? and in relation thereto, the learned counsel for the applicant has made reference to the provisions contained under Section 177 of Code of Criminal Procedure, which is yet again a provision which is required to be extracted:-
"177. Ordinary place of inquiry and trial. - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed."
10. Chapter 8 of the Code of Criminal Procedure, which provides for the provisions of a jurisdiction of the Criminal Courts, to try to conduct an inquiry and trial, Section 177 of CrPC, is yet again not an absolute provision, because it begins with the opening word "ordinary place of inquiry and trial", this would be one of the aspect, required to be considered by the trial Court, as to which place would be, the ordinary place of inquiry and trial in relation to the offences, which has taken birth from the present place of district Nainital, where the documents were said to have been manufactured and false forged stamp papers of the University was utilised hence, the birthplace of commission of offence in the instant case, would be the place where the documents itself were manufactured and not the place, where the documents were being later on utilised for a fraudulent appointment may be at different places of the country and in different selection processes. Hence, Section 177 of CrPC, which has been attempted to be read by the learned counsel for the applicant in the light of the provisions contained under 8 Section 182, even if the provisions contained under Section 182 is taken into consideration, it includes the cheating or deception or practice of use of the letters or telecommunications, which is being utilised for commission of an offence. Section 182 provides a continuity to a commission of offence of utilization of a document to give an offence a conclusive shape to the place, at which the said document was required to be used. The provisions of Section 182 of CrPC, itself gives a self contained expression, which is extracted hereunder:-
"182. Offences committed by letters, etc. (1) Any offence which includes cheating may, if the deception is practised by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.
(2) Any offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage or the wife by the first marriage has taken up permanent residence after the commission of the offence."
11. The learned counsel for the applicant has referred to Section 182 in relation to the commission of offence by letters. The letters, in its literal sense would mean a communication, which is transcribed in persona, it will not include within itself, its educational testimonials which are fraudulently documented, with a fraudulent stamp papers of the University created at particular 9 identified place, in order to bring it within the ambit Section of 182, which happened to be in the instant case, as per the narration of the set of allegation in the FIR, as the document which were said to have been utilised at the different places for alluring the candidates, to procure an appointment based on fraudulent documents, and was being used at different places. But, still as already observed above, the genesis of conduct of inquiry would be the place where the actual offence has commenced, which, in the instant case would be the place where the FIR has been registered at the place where the fraudulent documents were processed and not the places it was used for getting appointments based upon it because, all the cause and evidence would be at a place where the documents are said to have been germinated.
12. The learned counsel for the applicant, in support of his contention has referred to a judgement of the coordinate Bench of this Court, as reported in Criminal Misc. Case No. 210 of 2008, Hindustan Coca Cola Beverages Pvt. Ltd and another Vs. UOI and others, and particularly, he has referred to the contents of para 11 of the said judgment, which is extracted hereunder:-
"11. The High Court should not unduly interfere. But as per principle laid down in the Magna Carta of Section 482 Cr.P.C., where there is an expressed legal bar enacted in any provision of Cr.P.C. or any specific law in force to the very initiation of institution and continuance of such criminal proceedings, or such a bar is intended to provide specific protection to an accused, this Court should step in and interfere in exercise of it's jurisdiction under Section 482 Cr.P.C. The provisions of chapter 10 XIII Cr.P.C. are intended for this purpose. It is being said at the cost of repetition that the Court in District Bijnore (U.P.) only and not the Court in District Udham Singh Nagar (Uttarakhand) has territorial jurisdiction to decide the controversy involved in criminal complaint case filed by Shri Rajveer Singh, Advocate/Complainant."
13. If para 11 of the said judgement is taken into consideration, it was in the context of the ambit of exercise of powers by the Courts which were exercising its jurisdiction under Section 482 of CrPC, wherein it has been observed that there is no strict or a direct bar created by Section 482 of CrPC, to any specific law to be enforced to the offence, which are continuance in nature.
14. Such bar is specifically intended to provide a specific protection to an accused. Protection herein would always mean to be a protection, which happens to be in the context and within the parameters of law. On a simpliciter narration of allegation in the FIR, in order to answer the impact of para 11 in the context of the present case, this Court is of the view, that irrespective of the fact, that whether the applicant's name does figure amongst the name of accused persons or not, the very fact that the complainant has submitted that the documents were prepared at Nainital, which were having a fraudulent rubber stamp of the University, this in itself will be the exclusive birthplace of the commission of offence and as such, Section 177 of CrPC, could not be in a strict sense be applied to determine, as to which would be the place of trial for an offence, which is alleged by the complainant 11 to have been committed at the place, where the fraudulent documents which were manufactured by the named accused persons or by the other named accused, whose name has been disclosed during the course of trial, which was vehemently advocated by the applicant in the light of the provisions contained under Section 27 of the Indian Evidence Act.
15. The learned counsel for the applicant, in support of his contention, has referred to the judgement of the Hon'ble Apex Court, as reported in 2008 (3) SCC Criminal 617, Naresh Kavarchand Khatri Vs. State of Gujarat and Another, and in relation thereto, the learned counsel for the applicant has particularly drawn the attention of this Court to the contents of paragraphs 7 and 8 of the said judgment, which are extracted hereunder:-
"7. It is of some significance that the High Court exercised its jurisdiction even without notice to the petitioner. The investigation has to be carried out on the basis of the allegations made. The first informant is required to be examined; statements of his witnesses were required to be taken; the accused were also required to be interrogated. The undue haste with which the High Court has exercised its jurisdiction, in our opinion, should not be encouraged.
8. Whether an officer incharge of a police station has the requisite jurisdiction to make investigation or not will depend upon a large number of factors including those contained in Sections 177, 178 and 181 of the Code of Criminal Procedure. In a case where a trial can be held in any of the places falling within the purview of the aforementioned provisions, investigation can be conducted by the concerned officer in-charge of the police station which has jurisdiction to investigate in relation thereto. Sub-section (4) of Section 181 of the Code of Criminal Procedure Code would also be relevant therefor. We need not dilate more on analyses of the aforementioned provisions as the said question has been gone into by this Court on more than one occasion."12
16. What is important here is, that the judgement of the Hon'ble Apex Court, when it was referring to paras 7 and 8, it was dealing with an issue, about the ambit of exercise of powers by the High Courts, in the exercise of its jurisdiction under Section 482 of CrPC, without even issuing notices to the petitioner of the application. The observations made therein, was in relation to the investigation, which was to be carried out was on the basis of the allegations made, as referred to in the first information report and particularly, the implications of Section 177, 178 and 181, as referred to para 8 of the said judgment, with all due reverence at my command, the learned counsel for the applicant, before relying upon a judgment, will always have to scrutinize first as to in which context the judgment has been referred and rendered to. Every judgement cannot be uniformly applied for the purposes of determining the ambit of exercise of powers by the High Court under Section 482 of CrPC, particularly, when in the said case, the dispute, which was being considered by the Hon'ble Apex Court, it was in the context of powers of the High Court to transfer the proceedings of investigation from one Police Station to another, which was the prime question which was under consideration in the said case.
17. The issue of engaging a person into a commission of a criminal offence, due to disclosure of his name at a subsequent stage by an accused person in the statement which had been recorded under Section 161 13 of CrPC, is absolutely a distinct question to the one, which was being dealt with by the Hon'ble Apex Court in the judgement of Naresh Kavarchand Khatri (supra), because the framework of the judgement of the Hon'ble Apex Court was in the light of the observations which were made in paras 7 and 8, it would always be under the factual backdrop as to whether in the scope of exercise of powers under Section 482 of CrPC, and looking to the procedural embargos which were created by Section 177 and 178 of CrPC, as it was the case therein, whether the High Courts could have exercised its powers or jurisdiction to transfer the investigation which is not the factual case at hand.
18. It was not a case, which was dealing with the issue, or an aspect, as to when there is a disclosure of name of an accused person in a statement which has been recorded by the witnesses under Section 161 of CrPC, whether he could, at all, be summoned by the Court or not. Hence, since the said judgement was having a different contextual background, it will not be applicable under the facts of the present case and that too particularly when a piecemeal of a judgment has been attempted to be relied by the learned counsel for the applicant, for the purposes of the present case, which he has addressed in the light of the provisions contained under Section 27 of the Indian Evidence Act.
19. The second judgment, the reference of which has been made by the learned counsel for the applicant is 14 that as reported in 2003 (4) SCC Criminal 1314, Union of India Vs. Prakash P. Hinduja and Another. In this case, the learned counsel for the applicant has referred to para 9 of the said judgment, which is extracted hereunder:-
"9. Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The power can therefore be exercised to quash the criminal proceedings. The grounds on which the prosecution initiated against an accused can be quashed by the High Court in exercise of power conferred by Section 482 Cr.P.C. has been settled by a catena of decisions of this Court rendered in R.P. Kapoor v. State of Punjab AIR 1960 SC 866; Madhu Limaye v. State AIR 1978 SC 47; Delhi Municipality v. Ram Kishan AIR 1983 SC 67; Raj Kapoor v. State AIR 1980 SC 258. The matter was examined in considerable detail in State of Haryana v. Bhajan Lal AIR 1992 SC 604 and after review of practically all the earlier decisions, the Court in para 108 of the Reports laid down the grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings and basically they are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, (2) where the uncontraverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection. There are some statutes which create a bar on the power of the Court in taking cognizance of an offence in absence of a sanction by the competent authority like Section 6 of Prevention of Corruption Act, 1947 or Section 19 of Prevention of Corruption Act, 1988. Similar provision is contained in Section 196 Cr.P.C. which mandates that no Court shall take cognizance of the offences enumerated in the Section except with the previous sanction of the Central Government or of the State Government. Section 197 Cr.P.C. also creates an embargo on the power of the Court to take cognizance of an offence alleged to have been committed by any person who is or was a Judge or a Magistrate or a public servant not removable from his office save by or with the sanction of the government. But the proceedings in the present case have not been quashed on any one of the above mentioned grounds. The High Court has not examined the nature of the allegations made in the FIR or the evidence by which the prosecution seeks to establish the charge against the 15 accused during the trial. There is not even a whisper in the impugned order of the High Court that the FIR does not disclose a cognizable offence. Similarly, there is no reference to any statutory bar like want of valid sanction etc. to the taking of the cognizance of the offence. In fact the respondent Prakash Hinduja is not a public servant and consequently no sanction is required from any authority for his prosecution. The only ground on which the High Court has proceeded and has quashed the cognizance taken by the learned Special Judge and all consequential proceedings is that the CBI had filed the charge sheet without placing the same before the CVC and therefore an illegality had been committed in the course of investigation which entitled the High Court to quash the cognizance taken by the Special Judge and all proceedings of the case."
20. The para 9 of the said judgment, if it is read in its totality, it was exclusively dealing with its limit of exercise of inherent powers by the Court under Section 482 of CrPC in order to curb an abuse of process, but that never intended to curb an act of a Court to bring an accused person to the books to face a trial by forcing him to face the trial when his name has been disclosed by a co-accused person in commission of the offences by a co-accused person, the impact of which has already been dealt with by this Court, while answering the question under Section 27 of the Indian Evidence Act.
21. It is settled principles of law, that though the provisions contained under Section 482 of CrPC, its an inherent powers which could be exercised by the High Court, but then the exercise of powers under Section 482 of CrPC has had to be self restricted by the Court in order to avoid its misuse of powers, but that cannot be permitted to be alternatively be utilised to create an obstacle for the trial Court, to come to a rightful 16 conclusion of an offence, to bring the persons involved in commission of offence to books, as it has been complained of in the instant case, in the FIR with regard to manufacturing of fraudulent documents by using the rubber stamp of University, hence the birthplace of the commission of offence in the instant case, would definitely be the place where the FIR has been registered where the offence of manufacturing fraudulent document was committed, and the implications of para 9 of the judgement of Prakash P. Hinduja (supra), it was where the aspect of exercise of powers of the Court has been considered in relation to Section 482 of CrPC, it does not mean an unhindered exercise of powers.
22. The limit of exercise of powers herein is to ensure, that a complete justice is rendered in order to bring the truth on record. The utilisation of para 7, as if it was creating a bar to take an action against the persons, whose name has been disclosed by the co-accused person under Section 161 of CrPC, is not the intention of para 9 of the judgement of the Hon'ble Apex Court.
23. Apart from it, this Court being a constitutional Court, which is exercising its inherent powers under Section 482 of CrPC, cannot be ignorant of the fact, that the nature of offence, which has been complained of in the FIR, where a specific set of allegation is that the fraudulent educational records and documents of respective candidates have been creating in Nainital, for the purposes of procuring jobs in foreign countries, 17 that in itself would be an offence heinous enough to the society, which definitely requires to be gone into by the trial Court in order to identify the persons who were instrumental in commission of the offence, the technicalities of law while dealing with the ambit and exercise of powers under Section 482 of CrPC or in relation to the impact of Sections 27 and 177 in the context, in which it has been argued, it could be overlooked by the Court particularly, when the procedures adopted basically aims at to curb a social offense and impact of social menace.
24. In that eventuality, the summoning of the present applicant on the basis of the statement recorded by the co-accused person cannot be completely restricted even in the light of the provisions contained under Section 27 of the Indian Evidence Act. Hence, the C482 Application lacks merits and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.) 05.12.2022 Mahinder/