Punjab-Haryana High Court
Sukhbir Kataria vs Om Parkash on 14 October, 2021
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-53599-2018
Reserved on : 12.07.2021
Sukhbir Kataria
... Petitioner
Versus
Om Parkash
... Respondent
(2) CRM-M-54951-2018
Reserved on : 19.07.2021
Sukhbir Kataria
... Petitioner
Versus
Om Parkash
... Respondent
(3) CRM-M-57177-2018
Reserved on : 27.07.2021
Sukhbir Kataria
... Petitioner
Versus
Om Parkash
... Respondent
(4) CRM-M-54463-2018
Reserved on : 02.08.2021
Sukhbir Kataria
... Petitioner
Versus
Om Parkash
... Respondent
(5) CRM-M-947-2019
Reserved on : 16.08.2021
Sahdev and others
... Petitioners
Versus
Om Parkash
... Respondent
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(6) CRM-M-21528-2019
Reserved on : 17.08.2021
Arvind and others
... Petitioners
Versus
Om Parkash
... Respondent
(7) CRR-2265-2019
Reserved on : 13.09.2021
Om Parkash
... Petitioner
Versus
Sukhbir Kataria and another
... Respondents
Pronounced on : 14.10.2021
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
Present: Mr. S.K. Garg Narwana, Senior Advocate assisted by
Mr. Vishal Garg, Advocate and
Mr. J.S. Johal, Advocate for the petitioner (s)
in CRM-M-53599-2018; CRM-M-54951-2018; CRM-M-
57177-2018; CRM-M-54463-2018 and CRM-M-21528-2019
and for respondent No.1 in CRR-2265-2019.
Mr. Deepender Singh, Advocate for the petitioner (s)
in CRM-M-947-2019.
Mr. Manish Soni, Advocate for the respondent (s)
in CRM-M-53599-2018; CRM-M-54951-2018; CRM-M-
57177-2018; CRM-M-54463-2018; CRM-M-947-2019;
CRM-M-21528-2019 and for the petitioner (s)
in CRR-2265-2019.
Mr. Harish Kumar Nain, AAG, Haryana
for respondent No.2 in CRR-2265-2019.
(The proceedings have been conducted through video
conferencing, as per instructions.)
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G.S. Sandhawalia, J.
The present judgment shall dispose of CRM-M-53599-2018; CRM-M-54951-2018; CRM-M-57177-2018; CRM-M-54463-2018; CRM-M-947-2019; CRM-M-21528-2019 and CRR-2265-2019. The spinal connection of the complaints is similar in which the petitioners are an accused alongwith others and had been summoned in different complaints filed primarily by Om Parkash and in one FIR case discharged by the Additional Sessions Judge for the offences under IPC, therefore, the present set of cases have been taken up together. Facts of CRM-M-53599-2018
2. The present petition has been filed by Sukhbir Kataria, accused no.27 for quashing of Criminal Complaint bearing No.74285 dated 24.01.2013 (Annexure P-1) titled as 'Om Parkash Vs. Devender Kataria & others' filed under Section 420, 467, 468, 471, 120-B of the Indian Penal Code (IPC) and Section 31 of Representation of People Act, 1950. The order dated 21.07.2014 (Annexure P-3), vide which the petitioner alongwith others had also been summoned under the provisions of IPC only is also subject matter of challenge.
3. Challenge has been raised on the ground that disclosure of commission of any criminal offence is not made out and the proceedings are abuse of the process of Court. Further challenge has also been raised to the order dated 07.04.2018 (Annexure P-5) passed by the Judicial Magistrate 1st Class, Gurugram, whereby application for dismissal of the complaint and discharge of the petitioner had been dismissed and the 3 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -4- order dated 06.08.2018 (Annexure P-7), whereby revision petition against the said order had also been dismissed.
4. The discharge of the petitioner which was rejected vide order dated 07.04.2018 was sought primarily on the ground that the complainant was the General Secretary of the Matdata Jagrook Manch, Gurgaon, which was not a registered Society under the Haryana Registration and Regulation of Societies Act, 2012. The same had been repelled on the ground that it was filed at a belated stage and was only an attempt to delay the proceedings before the Trial Court and similar application had also been dismissed. The revision petition before the Additional Sessions Judge, Gurgaon of the petitioner was also rejected on 06.08.2018 (Annexure P-6), on the ground that the criminal proceedings could be set into motion by anyone and merely because the complainant as such was a convict in a murder case would not as such bar him from setting the criminal law into motion.
5. The gamut of the allegations against the petitioner contained in the complaint which has been filed are pertaining to the votes which were made on the basis of forged residence proofs by the other accused and on the basis of these forged documents, the votes were prepared and used in Gurgaon Vidhan Sabha Constituency. The allegations against the petitioner are only levelled in paragraph Nos.2 & 9 of the complainant.
6. A perusal of the same would go on to show that there were forged ration card bearing no.4285832 of House No.1250, which accused no.1 to 7 had got made in their favour and thereafter got Electoral 4 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -5- Identity Cards. Form no.6 was stated to have been used for making the votes and same was filled by the petitioner, accused no.27 in his own handwriting and declaration in the column had also been filled by the said accused. It is further the case of the complainant that accused no.1 to 7 had made votes in different booths bearing no.133, 136 and 111. Reliance was placed upon the information provided by the election office under Right to Information Act, which was enclosed with the complaint. Averments were made regarding the other accused, who prepared their Electoral Identity Cards on the basis of forged residence proofs, but it is pertinent to mention that there is no reference to the petitioner, accused no.27 having participated in any manner qua preparation of residence proofs of other accused No.1 to 7.
7. In paragraph no.9, it has been specifically stated that accused no.25 Sunita had prepared a fake ration card bearing no.538231 and Electricity Bill Account no.C.T.02-1622 and there was conspiracy to provide the benefit to the petitioner in the Vidhan Sabha Constituency Elections. The main ring leader of the forgery is stated to be the petitioner with whose collusion identity cards of other accused have also been used for the political benefit of the petitioner herein. Accused no.8 to 26 were stated to be permanent residents of Village Shahpur, Tehsil Bawal, District Rewari and not having any residential place or any other business activities in Gurgaon. They had prepared their identity cards in a forged manner to provide benefit to the petitioner, accused no.27, who is stated to be habitual criminal and 7 such like cases are pending against 5 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -6- him in the Courts at Gurgaon. Relevant paragraph no.2 & 9 are reads as under:-
"2. That the accused no.1 to 7 have got made forged ration card no.4285832 from House No.1250 from 8 Biswa, Village Gurgaon and while using the above ration card got made Electoral Identity Card. Form No.6 which is used for making the vote, the same was filled by accused no.27 with his own handwriting and the declaration in column no.3 of the form and the column to be filled by the registration officer, has also been filled with own handwriting. The votes of accused no.1 to 7 have been fraudulently made from different booth no.133, 136 and 111. The copy of information provided by the election office under Right to Information Act, is enclosed herewith.
9. That accused no.25 in a very clever manner fake Ration Card no.538231 and Electricity Bill Account No.C.T. 02- 1622, meter No. V.D 2-655, under a conspiracy, all the above mentioned accused persons in order to provide benefit to accused no.27 in 77 Gurgaon Vidhan Sabha Constituency elections, have used their identity cards and the main ring leader of the forgery of all the above mentioned accused persons is accused no.27. With whose collusion, by getting prepared the identity cards of all the above mentioned accused persons from above Constituency 77 Gurgaon, have also used the same for his political benefit. Whereas, accused no.8 to 26 are permanent residents of Village Shahpur, Tehsil Bawal, District Rewari. They are not having any residential place or any other business activities in Gurgaon. They only by getting prepared the identity cards in a forged manner have used their identity cards in order to provide benefit to accused no.27 in Gurgaon Vidha Sabha area. Accused no.27 is a habitual offender, who has remained associated with such like fraud. 7 such cases are pending against him in the courts at Gurgaon."
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8. In support of the said averments, the complainant-respondent examined 7 witnesses and placed voluminous documentary record on the file of the Trial Court. At one point of time complaint was sought to be withdrawn, which was rejected on the ground that the complaint related to non-bailable and cognizable offences, which would be clear from the order dated 11.03.2014 on the file of record and eventually a report was called under Section 202 Cr.P.C. by the Magistrate. Resultantly, report from the DCP (Headquarter) had been received on 15.05.2014, in which it had been mentioned that there is no opinion of handwriting expert regarding the forgery as such which had been mentioned in the complaint which is pertaining to filling up of form no.6. The summoning order was then passed.
9. While referring to examination of CW-1 Anil Kumar, Sub- Inspector, who had produced the ration cards, it is to be noticed that reference was only made to the ration cards no.538231 and 538232, which pertain to accused no.15 & 17 and 23 & 24 as per the complaint itself. Relevant ration card No.4285832 pertaining to the allegations against the petitioner and accused No.1 to 7 had not been referred to, though the same was produced by the complainant when he had appeared as CW-5. However, in spite of that the Magistrate came to the conclusion that the ration cards were prepared without submitting the requisite documents and were issued illegally. While placing reliance upon the other evidence on record including the statement of the complainant and one CW-6 Sunita that form no.6 of accused no.1 was filled by the present 7 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -8- petitioner and on account of which she had identified the handwriting of the petitioner being the Member of Gram Panchayat in which the petitioner had also worked as a Sarpanch. Resultantly, the finding was recorded that the ration card no.4285832 was a bogus ration card and a forged document and prima facie there was a conspiracy and, therefore, the petitioner alongwith other accused were summoned under the provisions of IPC. Relevant part of the reasoning of the summoning order passed by the Magistrate reads as under:-
"5. I have gone through the contents of the complaint as well as the preliminary evidence led by him. Report under Section 202 Cr.P.C. perused. The arguments led by the complainant have been heard at length by me.
6. The allegation against the accused, in brief; are that the accused persons got prepared forged votes on the basis of forged documents. The bogus votes obtained by such means were cast in favour of accused no.27 namely Sukhbir. The allegations are to the effect that accused no.1 to 7 got issued election voting cards after forging ration card no.4285832. The accused no.27 namely Sukhbir got filled the form no.6 in his own handwriting which was required to be filled by the registration officer. This act was done by them in conspiracy with accused no.27 in order to obtain unlawful political mileage. The complainant has examined PW-1 Anil Kumar, Sub-Inspector, T.R. Centre, Gurgaon who deposed that ration card no.538231 & 538232 are issued in the name of Jeet Ram son of Prabhati and Sardar Singh son of Mohar Singh respectively. He has further deposed that form D1 in support of ration cards have been decomposed due to rain. In other words, the above mentioned ration cards were prepared without following the requisite supporting documents and issued illegally. CW2 Arvind, authorized representative of Mata Sheetla Gas Service, Gurgaon deposed that gas copy
8 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -9- bearing consumer no.214364 is in the name of Salig Ram Meena and Ex.C1 and Ex.C2 (gas copies) in the name of Sardar Singh are not in consonance of his official record. He further deposed that these copies have been forged for obtaining unlawful benefit. CW3 Ishwar Singh, Asst. District Electoral Officer, Rewari and CW4 Daya Chand, Election Officer, Gurgaon also deposed in favour of the complainant. CW5 Om Parkash complainant himself reiterated the contents of complaint. CW6 Sunita deposed that form no.6 of Devender Kataria was filled by Sukhbir Kataria i.e. Accused no.27. She has identified the handwriting of Sukhbir Kataria. She has deposed that accused Sukhbir Kataria used to work as a Sarpanch at the time when she was member of Gram Panchayat, Gurgaon.
7. It is well settled proposition of law that at the stage of summoning, the material on record is not required to be weighed threadbare with minute details by the court. In other words, it is a prima facie case which has to be seen by the court at the stage of summoning and the probative value of the material on record is not to be assessed from the perspective of a full proof case. In the instant case, the material as discussed above prima facie shows that the accused in conspiracy with each other procured bogus votes at multiple addresses on the basis of a forged ration card no.4285832 electricity bills etc. In these circumstances, prima facie it appears that the accused in conspiracy with each other procured false documents with intent to cause injury to the public at large as well as to the rivals in the elections and thereby committed an offence of forgery for the purpose of cheating.
8. In view of above discussion there exist prima facie case sufficient ground to proceed against the all the accused under Sections 420, 467, 468, 471 & 120-B IPC. However, no prima facie case for summoning the accused under Section 31 of Representation of Peoples Act, 1950 is made out. Hence, all the accused be summoned to face trial under the above sections for 30.07.2014.
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10. The primary ground raised by the Senior Counsel challenging the summoning order in principle is that the order is non- speaking and does not give any reasons on the basis of which the Trial Court could have come to the conclusion that the offences under the provisions of IPC are made out qua the petitioner. Apart from that malafides as such of the complainant have also been alleged that the same was on account of political vendetta, since the petitioner had been elected as Member of Legislative Assembly in the year 2009 and his election had been challenged by one Umesh Aggarwal by filing election petition, which was eventually disposed of as having been rendered infructuos in the year 2014.
11. It is the case of the petitioner that Umesh Aggarwal, who was the President of the BJP had sought information from the Electoral Registration Officer, which would be clear from the document annexed with the written reply submitted herein also. The Election Petition (Annexure P-7/A) has also been referred to, to show that the same allegations have also been made regarding the bogus votes, which had been created for polling purposes. Similarly, it is the contention of the counsel that Sunita Kataria, one of the witnesses of the complainant, was a Member of the Gram Panchayat of the opposite side and was also the President of the Matdata Jagrook Manch, Gurgaon. The same would be clear from the complaint submitted by her and also appended alongwith impugned complaint filed by complainant-Om Parkash, Secretary of the 10 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -11- Matdata Jagrook Manch, Gurgaon.
12. Mr. Manish Soni, on the other hand has justified the summoning order on the ground that Sunita Kataria had identified the handwriting of the accused having worked with him being a member of the Gram Panchayat. He argued that the petitioner was accused in several set of cases, filled up various forms and forged ration cards, which would be clear from the records of the present case and also of the connected cases.
Facts of CRM-M-54951-2018
13. The petitioner Sukhbir Kataria, who is accused no.14 in Criminal Complaint bearing No.74136 dated 04.06.2013 (Annexure P-1) titled as 'Om Parkash Vs. Satish Kumar and others' seeks quashing of the same alongwith the summoning order dated 22.07.2013 (Annexure P-2), whereby he had been summoned to face trial under Section 420, 467, 468, 471, 120-B IPC. In the present case summoning has not been made under Section 31 of Representation of People Act, 1950.
14. The ancillary orders dated 07.04.2018 (Annexure P-4) whereby the application for discharge had been dismissed and upheld by the Additional Sessions Judge, Gurugram dated 11.05.2018 (Annexure P-5) are also challenged.
15. The allegations in the impugned complaint pertained to identity card, whereby the photo on Form ID ECI-EPIC-001B had been fixed issued by the Election Commission, Government of India. It is the grouse of the complainant that the said forms were filled with personal 11 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -12- affidavit in a pre-planned manner and got attested by the Election Officer on the basis of the report of the concerned B.L.O Office. Thus, specific allegations have been given against each accused No.1 to 13 as to how they have made multiple votes by putting the photograph, showing himself as some other person, whereas the original vote has also been enclosed alongwith the complaint.
16. The common thread which runs against the petitioner is that he is conspirator and benefit had been taken by him in the election of 2009 for the legislative assembly. The accused are stated to be family members in as much as some of them being parental uncles and cousins and family friends. The son of the petitioner Nitish Kumar has been arrayed as accused no.6 and is also stated to be involved in the said criminal conspiracy and also had forged the document of one Nitish, who is stated to be son of one Raj Kumar and had thus got his vote made containing his photograph. Similar allegations against other two accused no.9 and 10, who are brother-in-laws of the petitioner have also been made wherein multiple votes have been created, apart from the original vote as such of the said persons. Other accused are supposed to be Personal Advisors and Personal Assistants of the petitioner. The relevant portion of the complaint wherein allegations have been made against accused no.6, 9 and 10 read as under:-
"In what manner accused no.6 is an accused:-
001B (A-16 enclosed) Form has been used by Nitish Kumar son of Sukhbir Kataria by putting his photograph, by showing himself to be Nitish son of Raj Kumar, House 12 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -13-
No.1595, Village Gurgaon, has got made his Vote No.421 containing photograph from Booth No.135 (A-17 is enclosed). He is son of accused no.14, at the time when this 001B Form was filled, his age was only 16 years. This conspiracy has been done in order to provide benefit to accused no.14 in the election completed in the year 2009 because accused no.6 is son of accused no.14.
In what manner accused no.9 is an accused:-
001B (A-25 enclosed) Form has been used by Rajesh Rana son of Haripal Rana by putting his photograph, by showing himself to be Rajnish son of Devender, House No.1615, New Booth No.196, Vote No.515 (A-26 enclosed), Village Gurgaon and again by filling 001B (A-27 enclosed), has made vote No.1373 from Booth No.19, in name of Ram Parkash son of Ram Singh, House No.792/35, Village Gurgaon (A-28 enclosed), whereas his two votes from House No.2023, Ashokpuri from Booth No.5, Vote No.1543 (A-29 enclosed) and second from House No.1407, Booth 133, Vote No.603 (A- 30 enclosed), are there. This conspiracy has been done in order to provide benefit to accused no.14 in the Vidhan Sabha election completed in the year 2009 because accused no.9 is real brother-in-law (looser) of accused no.14 and is resident of village Shahbad, Daultpur, Delhi and there also has made his vote from his residence.
In what manner accused no.10 is an accused:-
001B (A-31 enclosed) Form has been used by Devender Rana son of Haripal Rana by putting his photograph, by showing himself to be Amit son of Jai Bharat, House No.1009, Village Gurgaon and by again filling 001B form (A-32 enclosed), showing as Sandeep son of Jile Singh, House No.1036A, Village Gurgaon, has got made vote containing photograph from House No.1009, Booth No.131, Vote No.1351 (A-33 enclosed) and House No.1035-A, Village Gurgaon in new Booth 192, Vote No.649 has been made (A-34 13 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -14-
enclosed). Apart from this Devender Rana by showing himself to be Murlidhar son of Naresh Kumar and Mukesh Kumar son of Harichand, have made to (two sic.) votes from House No.177 at Booth No.130, Vote No.580 (A-35 enclosed) and House No.811, Booth No.131, Vote No.448 (A-36 enclosed) and apart from the above have made his two votes from House No.G-73, South City, Gurgaon, at Booth No.153, Vote No.1185 (A-37 enclosed) and House No.1407, Village Gurgaon, at Booth No.133, Vote No.607 (A-38 enclosed). Apart from this has made his vote from Shahbad, Daulatpur, Delhi. This conspiracy has been done in order to provide benefit to accused no.14 in the Vidhan Sabha election completed in the year 2009 because accused no.10 is real brother-in-law (looser) of accused no.14 and has been got appointed as Assistant Government Pleader by the minister in Punjab and Haryana High Court. It is also being informed for the investigation that the real Amit Chauhan son of Jai Bharat Chauhan, House No.351/3, Booth No.88 has also made Vote No.944 (A-39 enclosed)."
17. The Magistrate initially preferred not to send the complaint (Annexure P-1) under Section 156 (3) Cr.P.C. for registration of FIR, vide order dated 04.06.2013 by noticing that complainant had produced all documents and attached list of witnesses with the complaint. After examining four complainant witnesses who were examined on 11.07.2013, the summoning order had been passed on 22.07.2013 (Annexure P-2). The reasoning contained in the said order reads as under:-
"6. The documents placed on file shown that accused no.1 to 13 applied to get their names incorporated in voter list and these documents also shows impersonation and tempering. The 14 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -15- further allegations are that accused no.14 contested the election by forging numerous documents in collusion with accused no.15 and 16 and accused no.1 to 13 were included in voters list on the basis of this forged and false documents. Hence the entire preliminary evidence shows criminal conspiracy on the part of all accused person.
7. In view of above said discussion all the accused are summoned under Sections 420, 467, 468, 471 read with Section 120-B of IPC are summoned for 16.8.2013 on filing of PF etc. However, no case is made out for summoning accused under Section 31 of Representation of People Act, 1950.
Arguments
18. Senior Counsel has accordingly argued that it is a non-
speaking order and does not reflect application of mind as to which of the offences have been made out and on which allegation the petitioner alongwith other accused have been summoned. It is submitted that there is nothing to show that the said voters had polled votes in favour of the petitioner. It is further submitted that original Nitish had never been produced nor his father Raj Kumar to hold out that form filled by the petitioner's son was not by him being the original voter. It is further the contention of the Senior Counsel that none of the witnesses as such deposed that who forged the documents.
19. Counsel for the complainant-Mr. Manish Soni, on the other hand has argued that all the close relatives are involved including the son of the petitioner and neither it is the case of the petitioner in the present petition that the said persons are not his relatives. It is submitted that none of the accused have come forward challenging the fact that they are 15 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -16- not relatives and had accepted the summoning order, which was passed way-back in the year 2013. It is submitted that the larger conspiracy is made out and the petitioner thus would be liable under the said provisions. Once sufficient evidence as such has come on record that the other accused are his close relatives and he would be the natural beneficiary. Pre-charge evidence is to be led and sufficient opportunities would be granted to the petitioner and no case is made out as such to interfere in the proceedings at this stage, as prima facie case is made out on the basis of documents itself. He diligently has referred to the record to demonstrate that one Nitish Kumar had filled out the form showing his father's name as Raj Kumar which had been exhibited as Ex.PW1/E, which was proved by the Naib Tehsildar, PW-1 Sant Lal. He, accordingly, pointed out that the averments are that he was minor at that time and that Vote No.421 had been made on the basis of said form.
20. Regarding accused no.9 Rajesh Rana reference has been made to the form which had been filled up wherein the name of Rajnish son of Devinder had been filled out as Ex.PW1/E and his vote had been mentioned at Serial No.515. The same person thereafter had allegedly filled out another form whereby he has been shown as Ram Parkash and Vote no.1373 has been made. The said person already has two votes at Serial No.1543 and 603, wherein his name has been mentioned as Rajesh Rana son of Hari Pal and Rajesh son of Har Pal Singh.
21. Qua accused no.10 the Form No.001B exhibited as Ex.PW1/K had been filled showing himself as Amit son of Jai Bharat and 16 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -17- another form (Ex.PW1/L) filled showing himself as Sandeep son of Jile Singh, while putting his photograph and Vote nos.1351 and 649 had been made. The same person had shown himself to be Murlidhar son of Naresh Kumar and Mukesh Kumar son of Harichand having made Vote Nos.580 and 448. Apart from the said fact he was stated to have two other votes also at different booths having Vote Nos.1185 and 607. It is submitted that specific averments were made that the said person was got appointed as Assistant Government Pleader by the petitioner in this Court.
22. It is, thus, submitted that the Magistrate was justified in summoning the petitioner and other accused, as prima facie offences are made out under the relevant provisions, as forgery of valuable securities for the purpose of cheating and fraudulently using as a genuine document has been done which they knew and had reason to believe that the same were forged documents and thus they are liable for prosecution.
Facts of CRM-M-57177-2018
23. The petitioner Sukhbir Kataria, who is accused no.10 in Criminal Complaint bearing No.122 dated 15.06/10.07.2013 (Annexure P-1) titled as 'Om Parkash Vs. Parveen and others' seeks quashing of the same alongwith summoning order dated 16.12.2013 (Annexure P-2) passed by the JMIC, Gurgaon, vide which he had been summoned to face trial under Section 420, 467, 468, 471, 120-B IPC.
Summoning has not been made under Section 31 of Representation of People Act, 1950, as in other cases.
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24. The ancillary orders dated 07.04.2018 (Annexure P-4) whereby the application for discharge had been dismissed and upheld by the Additional Sessions Judge, Gurugram dated 06.08.2018 (Annexure P-6) are also challenged.
25. The allegations in the impugned complaint qua the petitioner relate to accused no.5 to 8, who are Inderjit son of Ram Iqbal and his family members. It has been alleged that the said accused had made multiple votes at Gurgaon on the strength of ration card no.658457, which had been prepared by the present petitioner, accused no.10 in his handwriting and details of the family members had also been written by the petitioner in his handwriting. The accused no.9 working as Assistant Food & Supply Officer, had also put his seal and signatures on the blank ration card. The same was for the purposes of preparing the votes on wrong addresses, as the original Inderjit is son of Virender Singh.
26. The allegations against the petitioner specifically are that he is the ring leader of the entire episode and declaration in form no.6/8 of accused no.5 to 8 had also been filled by him. That on the basis of the said votes he had reached to the level of the Minister in the Haryana Government. The relevant portion of the averments made in the complaint, thus, read as under:-
"In what manner accused no.5 is an accused.
Inderjit son of Ram Iqbal, Vote No.1347 at House No.1448, Eight Biswa, Village Gurgaon, Booth No.136, Identity card No.WDC0628297 and vote No.706 at Booth No.133, and has also made Identity card No.HVV3198397 from House No.1468/12, Village Gurgaon. As per the information received 18 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -19- under Right to Information Act, 2005, Ration Card No.658457 Inderjit Singh son of Ram Iqbal Singh, House No.1448, Eight Biswa, village Gurgaon has been prepared by accused no.10 in his hand writing and the detail of the members has also been written by accused no.10 in his hand writing. The signatures of the person are also not there in whose name card has been made but it seems that Assistant A.F.S.O Accused No.9 has put his seal and signatures on the blank ration card. Apart from this the old electricity account No.CR01-3705 and new account no.AB013512 and K.No.2111037615, which is installed in the house of Inderjit son of Virender Singh resident of House No.87/2, Dayanand Colony, Gurgaon, the same has been used by Inderjit son of Ram Iqbal Singh for making is (sic. his) forged vote in collusion with accused no.10 whereas original Inderjit son of Virender Singh House No.87/2, Dayanand Colony, by giving his affidavit has stated that it is wrong that Inderjit son of Ram Iqbal has used his electricity bill in order to make his vote in a fraudulent manner.
In what manner, accused no.10 is an accused.
Accused No.10 Sukhbir Singh Kataria is the ring leader of this entire episode because he has prepared the ration card No.657457 of accused no.5 to 8 in his own hand writing in collusion with accused no.9 and the detail of the family members has also been filled by the accused in his own hand writing. Apart from this, the declaration of form no.6/8 of accused no.5 to 8 and the column to be filled up by the registration authority of the assembly constituency has also been filled up by accused no.10. Accused no.10 has reached at this place by making votes on the basis of fake documents from Panchayat member to Sarpanch and to the level of minister in Haryana Government. As per the information received through Right to Information Act, 2005, fake votes were prepared through fake documents by making changes in the date of birth of the children in their certificates of Matric and Middle of 19 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -20- Haryana Board and CBSE, Passbook of bank, house rent, electricity bill, fake ration cards and in the year 2009 which the accused had contested the election of Vidhansabha 77, the that time full benefit of these fake votes was taken and on the basis of the fake votes became victorious in the assembly elections. Hon'ble Court of Sh. Sunil Kumar, JMIC, Gurgaon, has made accused in two cases and has been made as an accused under Sections 420, 467, 468, 471, 120-B of Indian Penal Code by the Court of Sh. Ashok Mann, JMIC, Gurgaon and the accused is on bail on (sic. in) all the three cases and in similar district courts, eight other cases are pending. In the Municipal elections conducted in the year 2005 also, the case (State Versus Dhanpat) of fake ration cards recovered which were being used for polling through accused no.10, is pending in the Hon'ble court of Sukhpreet Singh."
27 The Magistrate initially preferred not to send the complaint (Annexure P-1) under Section 156 (3) Cr.P.C. for registration of FIR, vide order dated 15.06.2013 and fixed the case for preliminary evidence of the complainant.
28. Five complainant witnesses were examined on 30.07.2013 and the summoning order was passed on 16.12.2013 (Annexure P-2). While noticing the statements of the said witnesses, the Magistrate came to the conclusion that the evidence led by the complainant and the documents placed on record showed that accused no.1 to 8 were having votes of two booth, on the basis of forged identity proofs and ration cards. It was held that accused no.9 & 10 having conspired alongwith accused no.1 to 8 for getting the votes prepared there were sufficient grounds to summon the accused, as noticed above. Relevant part of the 20 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -21- summoning order reads as under:-
"The complainant in order to prove his case has examined five witnesses namely CW1 Inderjeet son of Virender Singh deposed that he is having electricity connection bearing account No.AV010693. The electricity bill Ex.PW1/A has been used by some other Inderjeet son of Ram Iqbal for getting his fake identity proof and vote prepared. He has placed on record his other electricity bills Ex.PW1/B to Ex.PW1/D. CW-2 Sunita deposed that she has worked with accused No.10 Sukhbikr Kataria as Member Panchayat when he was Sarpanch and therefore has seen him reading and writing. She identified his handwriting on Ex.CW2/A, Ex.CW2/B which is Form No.6 of Inderjeet Singh son of Ram Iqbal, Ex.CW2/C and Ex.CW2/D which is ration card of Inderjeet Singh son of Ram Iqbal. She has also deposed that the ration card used by Sheela Devi daughter of Inderjeet, Morti Devi wife of Inderjeet, Shiv Shankar son of Inderjeet is also in the handwriting of Sukhbir Singh.
CW-3 Rakesh Kataria deposed that he obtained the information from the Food & Supply Department under the RTI Act, 2005. As per the information obtained the address of Dilmohan son of Govind Ram as entered in ration card No.003150 is House No.383, Ward No.2, 12 Biswa, Gurgaon and Ashok Vihar is not entered in D4 which means that the Ashok Vihar address mentioned in the said ration card does not actually exist in the public record and the same is forged one. The information obtained under the RTI is contained in documents Ex.PW3/A and Ex.PW3/B. He has further deposed that in the ration card of Dilmohan in the list family members the name of Dilmohan is not written and the relevant document in Ex.PW3/C and Ex.PW3/D. Similarly, in the ration card Ex.PW3/E and Ex.PW3/F the address Ashok Vihar has been entered by tampering of the ration card.
21 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -22- CW-4 Sant Lal, Naib Tehsildar, Election, Gurgaon deposed that the documents Ex.PW4/B to Ex.PW4/F, Ex.PW4/I to Ex.PW4/M, Ex.PW4/Q to Ex.PW4/Z are the documents which have been obtained through RTI and have been issued by their office.
CW-5 complainant Om Parkash deposed that accused Parveen Kumar and Naveen Kataria have got their fake votes prepared on the basis of forged document and they are having votes in booth no.11 as well as in boothh no.129. He further deposed that Naveen Kumar son of Dilmohan also attempted to prepare third identity proof in the name of Suresh and the relevant document is Ex.PW4/A. He deposed that Inderjeet son of Ram Iqbal, Sheela Devi daughter of Inderjeet, Moorti Devi wife of Inderjeet, Shiv Shankar son of Inderjeet are also having their votes in Booth No.136 and 133 on the basis of fake identity proofs and forged ration cards. He deposed that accused no.9 issued blank ration cards after putting his signatures and official stamp. He deposed that accused No.10 has filled up the blank ration cards in his own handwriting and got the fake votes prepared. He also made complaints Ex.PW5/A to Ex.PW5/B to SHO, P.S. City, Gurgaon. He deposed that accused no.9 also issued fake and forged ration cards which are Mark CW5/1 to mark CW5/33. He deposed that all the accused persons have hatched the conspiracy for getting the fake votes prepared.
In view of the facts averred in the complainant and the evidence led by the complainant as discussed aforesaid and the documents placed on record in support of the complaint, the complainant has been able to show that the accused no.1 to 8 are having their votes in the two booths on the basis of forged identity proofs and ration cards and accused no.9 and 10 have conspired along with accused no.1 to 8 for getting their fake votes prepared. Accordingly, there are sufficient grounds to summon the accused no.1 to 10 to answer the allegations 22 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -23- under Section 420, 467, 468, 471 read with section 120-B of IPC.
Therefore, the accused no.1 to 10 be summoned for 14.02.2014 on filing of necessary PF and copies of complaint etc. However, no summoning of the accused persons is made under Section 31 of the Representation of People Act, 1950." Arguments
29. Senior Counsel Mr. Narwana has vehemently submitted that the petitioner has been summoned on the basis of photocopy of the documents placed on record and no officials of the Food & Supplies Department had been summoned that the ration card was forged. By placing reliance upon the statement of CW-2 Sunita, he argued that she did not say anything about the other family members of Inderjit Singh and similarly CW-3 Rakesh Kataria did not say anything negative qua the petitioner. Therefore, the basis of summoning is not justified. CW-4 Naib Tehsildar of the Election Wing had not brought the original record and, therefore, the exhibits as such which had been placed on record could not have been relied upon and it could not be said that there were two votes prepared. He submitted that reliance had been placed upon the voter list, identity cards of Booth no.133 and 136, which were not even exhibited as Ex.PW4/O and Ex.PW4/P, but were taken into consideration. He, accordingly, argued that the complainant CW-5 Om Parkash only talks about the ration card being blank and filled in the handwriting of the petitioner, but the said ration card had not been produced by the official. No handwriting expert had been produced and, therefore, the allegation 23 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -24- that the signatures were forged was not even proved, while summoning the petitioner alongwith other accused. Accordingly, he placed reliance upon the judgments passed in 'M/s Pepsi Foods Limited Vs. Special Judicial Magistrate, 1997 (4) RCR 761, M/s GHCL Employees Stock Option Trust Vs. M/s India Infoline Limited, 2013 (2) RCR 519 and 'HDFC Securities Ltd. And others Vs. State of Maharashtra and another', 2017 (1) SCC 640 to submit that summoning of a person is a serious consequence and at least reasoning should have been given in the impugned order. He has also placed reliance upon the observations of this Court passed in a connected matter bearing CRM-M-39202-2018 inter se parties decided on 26.04.2021 that in the absence of originals not being produced and in the absence of any handwriting expert, the summoning order had been quashed.
30. Mr. Manish Soni, counsel for the complainant on the other hand has argued that no reasons were required, as prima facie case only has to be taken into consideration. While referring to the record, he submits that it was a case of multiple votes of accused no.5 to 8 and the issue of conspiracy was much large and the beneficiary was the petitioner. He has placed reliance upon judgments of the Apex Court in 'J.P. Sharma Vs. Vinod Kumar' 1986 (2) SCR 388, Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and others' 1996 (6) SCC 263, 'Deputy Chief Controller of Imports and Exports Vs. Roshanlal Agarwal and others', 2003 (2) SCR 621, 'Bhushan Kumar and another Vs. State (NCT of Delhi) and another' 2012 (2) SCR 696, 24 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -25- 'Sonu Gupta Vs. Deepak Gupta and others', 2015 (3) SCC 424 and 'State of Gujarat Vs. Afroz Mohammed Hasanfatta', (2019) 20 SCC
539.
31. It is, accordingly, pointed out that a perusal of the voter list of two booths would go on to show that the names of accused no.5 to 8 Inderjeet, Sheela Devi, Murti Devi and Shiv Shanker found mentioned at two places, which were the specific averments in the complaint. He submitted that the ration card was already on record as Ex.PWC/2 in favour of Inderjit Singh and the Form no.6 had been also exhibited showing the address of House no.1448 which had been duly entered in the ration card also (Ex.CW2/C and Ex.CW2/D. Similarly, one EPIC Form of the Election Commission of India showing the said address filled was on the record as Ex.PW4/I, duly produced by the Naib Tehsildar Sant Lal, which also showed the same address. He, accordingly, submitted that there was sufficient material for the Court to have summoned the accused and, therefore, at this stage no interference is called for. Facts of CRM-M-54463-2018
32. The petitioner Sukhbir Kataria, who is accused no.4 in Criminal Complaint bearing No.74847 dated 19.08.2013 (Annexure P-1) titled as 'Om Parkash Vs. Parveen Nandal and others' challenges the summoning order dated 30.11.2013 (Annexure P-2) passed by the JMIC, Gurgaon, vide which he had been summoned to face trial under Section 420, 467, 468, 471, 120-B IPC. Summoning has not been made under Section 31 of Representation of People Act, 1950, as in other cases.
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33. The ancillary orders dated 07.04.2018 (Annexure P-4) passed by the JMIC, Gurgaon whereby the application for discharge had been dismissed and upheld by the Additional Sessions Judge, Gurugram dated 06.08.2018 (Annexure P-6) are also subject matter of challenge.
34. The allegations in the complaint qua the petitioner are that he in collusion with accused no.1 & 2, who are mother and daughter got prepared one ration card no.406494 at the address i.e. House No.1442, Near Saini Chaupal, village Gurgaon. The handwriting in the same was stated to be of accused no.4, which had been confirmed by Smt. Sunita, present Councilor, Ward no.15. The signatures of accused no.1 were also not on this ration card. As per the allegations, the ration card had not been issued by the concerned department and as per D-4 register at Sr. No.1170 entry was in the name of Tek Chand son of Pakhpal bearing entry of three members. The electricity bill of some other person by name of Rajinder Singh had been attached, which was fake for making the vote in Form No.6 in the column of declaration by which votes had been made in Booth no.134. Further the case is that the said process was done by accused no.3, the retired Assistant Food & Supply Officer, who had put his signatures and seal on the blank ration cards in order to make fake votes. The Food & Supplies Department is stated to have issued the ration card in the name of Tek Chand. The blank ration cards had been provided by accused no.3. The present petitioner is stated to be the kingpin of the entire episode as a ration card which had been attached was filled up by the said accused in his own handwriting. Resultantly, by 26 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -27- getting votes prepared on the basis of forged and false documents, he had reached to the level of Minister in the Haryana Government. Relevant portion of the averments made in the complaint thus read as under:-
"In what manner accused no.1 & 2 are an accused:-
It seems that accused no.1 and 2 in collusion with accused no.4 Sukhbir Kataria, got prepared one fake ration card no.406494, from the address House No.1442, Near Saini Chaupal, Village Gurgaon because on the same, the entire handwriting is of accused no.4, which has been confirmed by Smt. Sunita w/o Randhir Singh, present Councilor, Ward No.15. The signatures of applicant Parveen Nandal w/o Rajinder Nandal, are also not there on this ration card. As per the information sought by the complainant through RTI, this ration card has not been issued by the concerned department. In D-4 register at Sr. No.1170, this ration card is in the name of Sh. Tek Chand s/o Pakhpal, entry of three members is there. It is also mentioned here that accused no.1 and 2 has electricity bill of some other person by name of Rajinder Singh, whose account no.C.T 02- 1069-A, has been attached. So, it is also fake and for making the vote in the column of declaration by the applicant in Form No.6, the declaration which has been made, the same is self contradictory. In this manner, election office without any inquiry, by putting the rules of election office on stake, in collusion with accused no.1, 2 and 4, has made their votes, Booth No.134, Vote No.1364, 1365, Identity Card No.WDC0780692 and WDC0780700.
"In what manner accused no.3 is an accused:- Accused no.3 Devender Singh Kadyan, Retired A.F.S.O, had provided blank ration card to accused no.4 Sukhbir Kataria, by putting his signatures and seal. With which, accused no.4 Sukhbir Kataria, in order to make fake vote of anyone, by filling the place of resident and number of persons, used the same as per the convenience. While holding Devender Singh
27 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -28- Kadyan an accused in such kind of allegations, he has been declared as an accused by Hon'ble Court of Sh. Ashok Maan, JMIC, Gurgaon. Such kind of other allegations are also pending in the court at Gurgaon in State Versus Rakesh, in which blank ration card containing seal and signatures have been produced by Rakesh in the Court in case titled State versus Rakesh. Thousands of ration cards like this have been made by accused no.3 without giving the application form. As per Food and Supply department the Ration Card No.406494, attached by accused no.1 and 2 with Form No.6, is in the name of Tekchand s/o Bakhpal with entry of three members. From this it is clearly proved that Devender Singh Kadyan accused no.3 use to provide blank ration card to accused no.4 by putting his signatures, in which signatures of ration card holder accused no.1 are also not there.
"In what manner accused no.4 is an accused:-
Accused no.4 is kingpin of this entire episode because the ration card which he has attached with the Form no.6 of accused no.1 and 2 for the purpose of certificates of place of residence, the same has been filled by accused no.4 with his own handwriting. This handwriting has been confirmed by Sunita w/o Randhir Singh, who has remained as Member Panchyat with accused no.4 since 2002 to 2005. Accused no.4 from Member Panchayat to Srapanch and till the post of Minister in Haryana Government, has reached to this place by getting votes prepared on the basis of forged documents."
35. The Magistrate did not send the complaint (Annexure P-1) under Section 156 (3) Cr.P.C. for registration of FIR and investigation, vide order dated 19.08.2013 and fixed the case for preliminary evidence of the complainant.
36. Thereafter, on 14.10.2013, the complainant examined 4 CWs, apart from relying on large number of documents which had been 28 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -29- appended alongwith the complaint and which would be clear from the record, details of which, however, had also not been mentioned in Annexure P-1. The Magistrate while referring to the statements of the said witnesses and allegations levelled, came to the conclusion that there was sufficient material on record to proceed against the accused since a prima facie case was made out, as bogus votes on the basis of forged and illegal ration cards and false documents had been procured, in conspiracy to cause injury to the public at large and his rivals in the elections. It was also observed that multiple votes had been made by accused no.1 & 2, which is the main plank of argument of counsel for the petitioner that nothing of the same was on record. Relevant portion of the reasoning given in the summoning order reads as under:-
"14. At that stage of summoning, the materials on record is not required to be weighed threadbare with minute details by the court. On the other hand, at that stage, the material on record has to be looked into from the angle as to whether there is sufficient material to proceed against the accused for the commission of the alleged offences. In other words, it is a prima facie case which has to be seen by the court at the stage of summoning and the probative value of the material on record is not to be assessed from the perspective of a full proof case. In the instant case, the material as discussed above, prima facie shows that the accused in conspiracy with each other procured bogus votes at multiple addresses on the basis of a forged ration card and such votes would not have been issued in favour of the accused No.1 & 2 by the competent authority if it were not deceived by the dishonest intention emanating from accused No.1 to 6. Since the multiple votes were procured on the basis of forged and illegal ration card
29 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -30- bearing No.406494 having the address as # 1442, Near Saini Chaupal, Gurgaon. Prima facie it appears that the accused in conspiracy with each other procured false documents with interest to cause injury to the public at large as well as to the rivals in the elections and thereby committed an offence of forgery for the purpose of cheating."
Arguments
37. Senior Counsel for the petitioner has argued that it is not a case of multiple votes and the impugned order is non-speaking as such and accused no.6 had also been summoned who was mentioned as a concerned official. He submitted that CW-1 Smt. Shama Sharma, Election Kanungo has merely stated that she had seen the record produced by the accused including the ration card and nobody had been examined from the office of District Food & Supplies Department. He further argued that similarly CW-2 Sunita had only talked about the ration card, whereas CW-3 Rakesh had been only produced to give evidence against Devender Singh Kadyan, retired Assistant Food & Supply Officer. Similarly, Om Parkash, complainant had only talked about the information received under the Right to Information Act, 2005 and that there is no entry in the ration card in question. Thus, he submitted that photocopies of the documents had been relied on to summon the petitioner and there was no tenable evidence on record as such and the summoning order was not justified.
38. Mr. Manish Soni, counsel for the complainant on the other hand meticulously has referred to the entries made in the ration card from the copy of the record to submit that entries at Ex.CW2/A and Ex.CW2/B 30 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -31- were filled up by the petitioner in his own handwriting. He submitted that stamping on Ex.CW3/A as such was done by accused no.3, the official, which was a blank ration card given to the petitioner by the said accused. He further submitted that the witness had deposed as per the RTI information, which was made available. Ex.CW4/Z-4, the information qua the ration card could not be supplied, since it was not available in the record and thus there was sufficient material on the record to summon the accused. Reliance was also placed upon the electricity bill in the name of Rajinder Singh (Ex.CW1/F) to submit that husband of accused no.1 was Rajinder and said electricity bill had wrongly been used for the purpose of creating the vote. He, accordingly, submits that documents which were exhibited were true and certified copies and were admissible under Section 63 of the Indian Evidence Act, 1872 and, therefore, sufficient material as such was before the trial Court to summon the accused. Reliance was also placed upon Section 311-A Cr.P.C. that the procedure for comparison of the handwriting of the accused would only be taken after taking his specimen signatures or handwriting. Accordingly, reliance was placed upon under Section 80 of the Indian Evidence Act, 1872 to submit that once the document were seen by the Court, there is presumption of correctness. He further submitted that CW-2 Sunita had deposed that she had seen the accused signing as a Panch and, therefore, there was sufficient material as such on record that the ration card had been filled up by the petitioner. Once documents Ex.CW-1/A and Ex.CW-1/M had been proved by CW-1 31 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -32- Shama Sharma, there was no necessity as such to summon the record from the District Food & Supplies Department and in such circumstances he defended the summoning order. He further submitted that the petitioner was responsible for subverting the electoral process and prima facie case had been made out not only in one case, but he was also accused in many other cases and resultantly no such case was made out for exercising powers under Section 482 Cr.P.C. Facts of CRM-M-947-2019
39. The petitioners in the present case are accused No.7 to 10 in the Criminal Complaint bearing No.189 of 2013 (Annexure P-1) titled as 'Om Parkash Vs. Ramesh and others'. They have challenged the same alongwith summoning order dated 13.06.2014 (Annexure P-2) passed by the JMIC, Gurgaon, whereby they have been summoned to face trial under Section 420, 467, 468, 471, 120-B IPC. Similarly, they have also challenged the order dated 02.01.2019 (Annexure P-3) wherein application for discharge had been dismissed on the ground that case was listed for pre-charge evidence of the complainant and the criminal law can be set into motion by any person and the application had been filed at a belated stage. It is to be noticed that the complaint as such against accused no.11 to 14 was dismissed including accused no.12 Sukhbir Kataria, while no summoning was made under Section 31 of Representation of People Act, 1950.
40. Allegations qua the present petitioners in the complaint is that petitioner no.1 Sahdev had got three votes made in Gurgaon and a 32 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -33- false affidavit had been given qua declaration in Form no.6/8. The said form had also been wrongly verified by his son Paramjit, petitioner no.3 herein. Similarly, wife of petitioner no.1 was also stated to have made three votes and allegations were of impersonating and regarding pasting of photographs.
41. Regarding accused no.9 the allegations were that he had also got three votes and therefore, forged documents had been given for giving house addresses etc. Wife of petitioner no.3 who has been arrayed as petitioner no.4 herein is stated to be guilty of having two votes. The necessary averments made in the complaint qua them read as under:-
"In which manner accused no.7 is guilty.
Accused no.7 has got three/three identity card which are as follows:-
1. Sehdev son of Chattar Singh, house no.1388, Gurgaon booth no.133 Vote no.288 ID Card no.H/07/61/0141508.
2. Sehdev son of Chattar Singh, house no.917, Hira Nagar, Gurgaon booth no.104 Vote no.771 ID Card no.WHCS566638
3. Sehdev son of Chattar Singh by pasting his photograph, at H.no.1388A, Gurgaon Village, Booth No.133 Vote no.300 ID no.HVV3700424 House no.1388 of Gurgaon Village belongs to accused no.12 Sukhbir Kataria and accused no.7 has given a false affidavit qua the declaration in form no.6/8 that he has not been issued any ID in any Electoral Zone throughout India and Pararmjit son of accused who is an Advocate at Gurgaon is fully aware by the law and inspite of this has verified the form no.6/8 of his father that his father has not been enrolled as a voter anywhere else in India.
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In which manner accused no.8 is guilty Accused no.8 Parmeshwari Devi, has got three/three identity card which are as follows:-
1. Parmeshwari Devi d/o Bhim Singh, house no.1388, Gurgaon village booth no.133 voter no.279 ID card no.HVV3166865.
2. Parmeshwari Devi w/o Sehdev, house no.917/23, Hira Nagar, Gurgaon booth no.104 Vote no.852 ID Card no.HVV3609484.
3. Parmeshwari who by impersonating as Jaswant Kaur wife of Anup Singh, by pasting his photograph, at ID no.JVV3402140 has got made her forged vote whereas original Jaswant Kaur is enrolled as a voter in booth no.77 as voter no.98 ID No.WDC0123292 (copy of voter list enclossed) in the form no.6 of the above accused the documents which have been appended in the name of Jaswant Kaur and it is possible for the police to obtain the same from the Election Office.
In which manner accused no.9 is guilty Accused no.9 Paramjit Singh who is practising as a lawyer in the court has by using forged documents has got three/three identity card which are as follows:-
1. Paramjit Singh s/o Sehdev, house no.1388A, Gurgaon village booth no.133 voter no.299 ID card no.HVV2790681.
2. Paramjit Singh s/o Sehdev, house no.917/23, Hira Nagar, Gurgaon booth no.104 vote no.854 ID card no.HVV2790681.
3. Paramjit Singh s/o Sehdev, house no.917/23, Hira Nagar, Gurgaon booth no.102 vote no.838 ID card no.HVV3402138.
Apart from this above accused has got prepared forged documents in respect of accused no.1 to 6 by giving his house address and has helped them in this regard. It is the police which can got to know from these accused no.1 to 6 by making enquiries as to who are the original residents of which place.
34 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -35- In which manner accused no.10 is guilty Accused no.10 Parveen w/o Paramjit has got two/two identity card which are as follows:-
1. Parveen w/o Paramjit, house no.1388A, Gurgaon village booth no.133 voter no.271 ID card no.HVV2930089.
2. Parveen w/o Paramjit, house no.917/23, Hira Nagar, Gurgaon booth no.104 voter no.772 ID card no.WDC0047613.
The above accused is guilty in the same manner as accused no.9 and this is also subject matter of enquiry.
42. On the basis of the evidence produced by the complainant, the summoning order was passed on 13.06.2014 qua accused no.1 to 10 and it was dismissed qua accused no.11 to 14. Relevant portion of the summoning order reads as under:-
"Accused No.7 to 10 are family members. The complainant has placed on record voter list Ex.CW1/V page 73, Ex.CW1/W page 75, Ex.CW1/X page 77, Ex.CW1/Y page 79, Ex.CW1/Z page 81 and Ex.CW1/ZA page 83. These exhibits Ex.CW1/V to Ex.CW1/ZA are the voter lists of Booth No.133, 104, 102, 148 and 77, respectively. The perusal of the said voter lists shows that accused No.7 is having his vote in Booth No.133 at Serial No.288 and his house number is 1388. The accused No.7 is also having vote in Booth No.104 at serial No.771 wherein his house number is
917. The complainant has alleged that the accused no.7 is also having another vote in Booth No.133 at serial No.300 where the photograph of accused No.7 has been affixed. Similarly, accused No.8 Parmeshwari Devi is having her vote in Booth No.133 at serial No.279 wherein her house number is mentioned as 1388. She is also having her vote in Booth No.104 at serial No.852 wherein her house number is 917/23. The complainant has alleged that she is also having vote at serial No.863 in the name of Jaswant Kaur whereas the actual 35 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -36- vote of Jaswant Kaur is in Booth No.77 at serial No.98. The accused No.9 Paramjeet is having his vote in Booth No.133 at serial No.299 wherein the house number mentioned in 1388A. Another of accused No.9 is in Booth No.104 at serial No.854, house No.917/23. His another vote which has been deleted was in Booth No.102 at serial No.838. The accused No.10 Parveen is also having two votes, one in Booth No.133 at serial No.271, house No.1388 and another in Booth No.104 at serial No.772, house No.917/23 which shows that the accused No.7 to 10 have got their more than one votes prepared on the basis of different residential addresses and which one is true needs to be answered by the accused persons. Accordingly, there are also sufficient grounds for summoning the accused No.7 to 10 under Sections 420, 467, 468, 471 IPC. However, there is nothing incriminating on record to connect the accused No.12 Sukhbir Singh with the accused No.1 to 10 except that he is relative of accused No.7 to 10. Further the complainant though alleged in his complaint that the handwriting on the documents obtained under RTI appear to be of accused No.12 but he failed to depose in this regard. Similarly, the complainant has alleged in his complaint that the accused No.11 has issued blank ration cards with his stamp and signatures but the complainant failed to identify the signatures of accused No.11. Again the complainant failed to depose that signatures on form No.6/8 are of accused No.13. No other witness has been examined by the complainant to identify the handwriting of accused No.11 to 13. Accordingly there are no sufficient grounds for summoning the accused No.11 to 13 on the mere apprehension of the complainant as to their handwriting without being supported by any evidence.
The involvement of any other person has not come on record during investigation under Section 202 Cr.P.C. In view of my above discussion, the accused No.1 to 10 are 36 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -37- ordered to be summoned to answer the allegations under Section 420, 467, 468, 471 read with section 120B of IPC. Therefore, the accused No.1 to 10 be summoned for 16.07.2014 on filing of necessary PF and copies of complaint etc. However, no summoning of the accused persons is made under Section 31 of the Representation of People Act, 1950. The complaint qua accused No.11 to 14 is hereby dismissed."
Arguments
43. Mr. Deepender Singh, counsel for the petitioners, has accordingly, argued that the case was sent for investigation under Section 202 Cr.P.C. and as per the order dated 02.12.2013, the adverse material was against other accused no.1 to 6 and no material has come on record in the investigation by the police qua the petitioners and incomplete report had been given subsequently on 01.05.2014. It is, accordingly, submitted that no offence as such was made out under IPC as only one witness was examined, the complainant himself and only photocopies of the documents had been produced, which were exhibited. Thus, there was no ground for summoning the accused under the provisions of IPC. He has referred to the form filled by petitioner no.1 that he had given a declaration that his vote be deleted from one address in Gurgaon i.e. House No.917/23, Hira Nagar, Gurgaon. He further submitted that thus, there is no forgery as such and only an offence under Section 31 of Representation of People Act, 1950 would be made out. He further argued that limitation is only of one year in such a case and, therefore, provisions of Section 468 Cr.P.C. would come into play as offences were 37 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -38- of 2009, whereas the complaint was filed in the year 2013, thus, would be barred and liable to be quashed on this ground. He has meticulously referred to photocopy of the record to submit that merely having two votes as such on account of family members would not make out an offence under Section 17 and 31 of Representation of People Act, 1950. False declaration given would not be an offence and, he thus, prayed for quashment of the complaint while placing reliance upon judgment passed in 'Rajesh Joshi Vs. State through the Electoral Registration Officer', 2016 (2) RCR (Civil) 847.
44. Mr. Manish Soni, counsel for the complainant on the other hand has painstakingly taken this Court through the material which was brought on record before the Magistrate to submit that on account of incomplete report and the Government officials not cooperating, the Court had issued notice to the concerned persons, on account of the statement of the Investigating Officer. Resultantly, Clerk of Tehsildar (Elections) had been summoned, since the police official had registered a DDR No.20 on 25.11.2013 that government officials were being pressurised not to give certified copy of the record. He further submitted that in pursuance of the same, information was brought by the concerned officials as to the different votes, but the photo of petitioner no.1 was the same. Reference was also made to form filled by petitioner no.1 to submit that he purposely had not given the details of the earlier votes, which had to be deleted and, therefore, argument raised by counsel for the petitioner that merely having two votes would not be an offence is not 38 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -39- justified. It is submitted that prima facie material was brought on record to show that more than one vote had been created by using false documents. He further pointed out from the voter list that name of Parmeshwari petitioner no.3 is at Sr. no.279 for booth no.133, wherein she had been shown as daughter of Bhim Singh being the sister of the main accused Sukhbir Kataria, whose vote had also been shown at Sr.no.295 both being residents of House No.1388 of village Gurgaon. It is submitted that at the same time she had been shown in the voter list of Hira Nagar at Sr.no.852, wherein she was shown as wife of Sahdev at house no.917/23. Similarly, reliance is placed upon the fact that there is a deletion done at one place in Ex.CW1/Y that one Jaswant Kaur's vote was there and she had been shown as wife of Anup Singh and Parmeshwari Devi had also been shown under a deleted vote wherein her photograph had been pasted as wife of Anup Singh. It is submitted that thus there is prima facie evidence on record and the petitioners are closely related to the main conspirator Sukhbir Kataria, who has unfortunately got a order in his favour by way of dismissal of complaint against him. It is submitted that Parmeshwari Devi is the real sister of the said accused, whereas other accused are close family members being brother-in-law etc. and they are liable to be prosecuted and no ground is made out for interference under Section 482 Cr.P.C.
Facts of CRM-M-21528-2019
45. The petitioners in the present case are accused No.1 to 5 in the Criminal Complaint bearing No.96 30.09.2013 (Annexure P-1) titled 39 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -40- as 'Om Parkash Vs. Arvind and others'. They have challenged the same alongwith summoning order dated 02.11.2015 (Annexure P-2) passed by the JMIC, Gurgaon, whereby they have been summoned to face trial under Section 420, 467, 468, 471, 120-B IPC alongwith accused no.6 &
8. However, they have not been summoned under Section 31 of Representation of People Act, 1950.
46. Accused no.6 happens to be Sukhbir Kataria the kingpin of all criminal prosecution, which is subject matter of discussion in this bunch of cases. The said person has somehow not opted to challenge the said summoning order though in the other cases he has done so. The challenge is also raised to the order dated 13.03.2019 (Annexure P-4) whereby first revision as such was dismissed by the Additional Sessions Judge, Gurgaon and the summoning order was upheld. The revisional Court came to the conclusion that the argument that the statements of witnesses have not been recorded on oath, were not tenable, as the statements were signed by the witnesses as well as by the Presiding Officer. It was held to be a mere procedural irregularity and not such a illegality which could vitiate the entire proceedings. The perusal of case file had shown that there were several documents, particularly voter cards of one person at different addresses and, therefore, it was held that sufficient material was present for summoning the accused as a prima facie case was to be seen at the stage of summoning.
47. A perusal of the complaint as such against the petitioners would go on to show that the allegations qua five petitioners herein were 40 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -41- that they had got prepared different identity cards on the basis of fake documents at House No.1845/3, Rajeev Nagar, Gurgaon and thus, got multiple votes. The same was on the basis of ration card bearing no.602480, which was in the name of Bimla Devi wife of Hari Krishan at address of House No.1845/3, Rajeev Nagar, Gurgaon, whereas the correct ration card was made on the address of 1845, 8 Biswa, Gurgaon. Allegations were made that husband of petitioner no.3-Kavita, namely Baljeet Singh was the Personal Secretary of accused no.6 Sukhbir Kataria and similarly petitioner no.5 Suman was also wife of Sumer, who was another Personal Secretary. The relevant portions of the complaint read as under:-
"In what manner accused no.1 is an accused:-
Accused no.1-Arvind Kumar has got prepared three identity cards on the basis of fake documents.
1. Arvind Kumar from House No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote No.599, Identity card No.WDC360768.
2. Arvind Kumar son of Hari Kishan from House No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote No.607, Identity card No.HVV3220860.
3. Arvind Kumar son of Kari Kishan from House No.1845, 8 Biswa, Gurgaon Village, Booth No.133, Vote No.793, Identity card No.WDC106702.
Accused by committing forgery with Ration Card no.602480 which has been made in the name of Bimla Devi wife of Hari Kishan at address of House No.1845/3, Rajiv Nagar, Gurgaon, above Ration Card was made on the address of 1845, 8 Biswa, Gurgaon Village and by getting prepared their fake identity cards from same address, provided benefit to accused no.6 in the Vidhan Sabha election held in 2009. In the forgery of 41 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -42- ration card, 8 Biswa Gurgaon Village, which has been written, the same seems to be written by accused no.6, this is matter of deep inquiry.
In what manner accused no.2 is an accused:-
Accused no.2 Sovind son of Hari Kishan, has got prepared following two Identity cards on the basis of fake documents:-
1. Sovind son of Hari Kishan from House No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote No.605, Identity card No.HVV3220832.
2. Sovind son of Hari Kishan from House No.1845, 8 Biswa, Gurgaon village, Booth No.133, Vote No.792, Identity card No.WDC1076686.
The accused by committing forgery with Ration Card No.602480, which is made in the name of Bimla Devi wife of Hari Kishan at address House No.1845/3, Rajeev Nagar, Gurgaon, the above Ration Card was made on the address 1845, 8 Biswa, Gurgaon Village and by getting prepared their respective fake identity cards from same address, provided benefit to accused no.6 in the Vidhan Sabha election held in 2009. In the forgery of ration card, 8 Biswa Gurgaon Village, which has been written, the same seems to be written by accused no.6, this is matter of deep inquiry.
In what manner accused no.3 is an accused:-
Accused no.3 by using fake documents, has got prepared two following identity cards:-
1. Kavita wife of Baljeet Singh House No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote No.600.
2. Kavita wife of Baljeet Singh House No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote No.603.
Form No.6/8 of accused no.3, which are filled for making the vote, have been made by committing forgery like accused no.1 and 2 obtaining those forms from District Election Office and conducting deep inquiry on the same that which respective officers are involved in this forgery, it is matter of deep 42 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -43- investigation. We are only producing the voter list along with this complaint. The important point in the same is that Baljeet Singh who is husband of accused no.3, he is personal secretary of accused no.6 and in this kind of offence, Baljeet Singh son of Ram Chander, has been declared as an accused by the Court of Hon'ble Sh. Sukhpreet Singh.
In what manner accused no.4 is an accused:-
Accused no.4 by using fake documents, has got prepared following two identity cards:-
1. Jai Parkash son of Hawa Singh, House No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote No.608.
2. Jai Parkash son of Hawa Singh, House No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote No.1174.
Form No.6/8 of accused no.4, which are filled for making the vote, have been made by committing forgery like accused no.1 and 2 obtaining those forms from District Election Office and conducting deep inquiry on the same that which respective officers are involved in this forgery, it is matter of deep investigation. We are only producing the voter list along with this complaint.
In what manner accused no.5 is an accused:-
Accused no.5 by using fake documents, has got prepared following two identity cards:-
1. Suman wife of Sumer, House No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote No.613.
2. Suman wife of Sumer, House No.1845, 8 Biswa, Gurgaon village, Booth No.133, Vote No.770.
Form No.6/8 of accused no.5, which are filled for making the vote, have been made by committing forgery like accused no.1 and 2 obtaining those forms from District Election Office and conducting deep inquiry on the same that which respective officers are involved in this forgery, it is matter of deep 43 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -44- investigation. We are only producing the voter list along with this complaint. The important point in the same is that Sumer Singh who is husband of accused no.5 and is stated to be personal secretary of accused no.6 and in this kind of offence, Sumer Singh son of Ram Chander, has been declared as an accused by the Court of Hon'ble Sh. Sukhpreet Singh."
48. The complaint (Annexure P-1) was not sent to the police for registration of FIR and investigation, though a request had been made on 07.09.2013 and case was fixed for preliminary evidence of the complainant. The complainant examined himself on 31.10.2013 and thereafter examined three witnesses on 16.05.2014. The summoning order was passed on 02.11.2015 (Annexure P-2). The reasoning given in the said order reads as under:-
"12. At that stage of summoning, the materials on record is not required to be weighed threadbare with minute details by the Court. On the other hand, at this stage, the material on record has to be looked into from the angle as to whether there is sufficient material to proceed against the accused for the commission of the alleged offences. In other words, it is a prima facie case which has to be seen by the court at the stage of summoning and the probative value of the material on record is not to be assessed from the perspective of a full proof case. In the instant case, the material as discussed above, prima facie shows that the accused in conspiracy with each other procured bogus votes at multiple addresses on the basis of forged ration card and such votes would not have been issued in favour of the accused no.1 to 6 and 8 by the competent authority if it were not deceived by the dishonest intention emanating from accused no.1 to 6 and 8. Since the multiple votes were procured on the basis of forged and illegal ration card. Prima facie it appears that the all accused except in accused no.7 and 44 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -45- 9 in conspiracy with each other procured false documents with interest to cause injury to the public at large as well as to the rivals in the elections and thereby committed an offence of forgery for the purpose of cheating.
13. In view of aforesaid, the accused no.1 to 6 and 8 are summoned under Section 420, 467, 468, 471, 120-B IPC, on filing of PF etc., for 18.12.2015. However, no prima facie case for summoning under Section 31 of RP Act, 1950 is made out against the accused persons."
Arguments
49. Senior Counsel for the petitioner has vehemently argued while referring to the photocopy of the record which has been summoned that CW-1 Shama Sharma had not got the summoned record, but only stated that she had seen the copy of the record, which was stated to be correct. Therefore, on the basis of the said fact he submitted that once the original form no.6 had not been brought the Court was not justified in accepting the statement. Therefore, only the statement of the complainant had been relied while summoning the accused. It is, accordingly, submitted that the statements as such of the other witnesses were not on oath and the statements of official witnesses alongwith Assistant Food & Supply Officer, Anil Kumar, CW-3 Om Parkash and CW-4 Rakesh Kumar, were not on oath. It is, accordingly, contended that ration card Ex.CW3/F bearing no.602480 were of two different addresses, which were all true copies and no originals alongwith the record had been summoned. It is submitted that voter lists were also not exhibited and were only photocopies and, therefore, he relied on Section 200 Cr.P.C., to 45 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -46- submit that the Magistrate has to examine on oath the complainant and the witnesses present and cognizance should only be taken if there were some admissible evidence on record. Reliance is placed upon the judgment of the Apex Court in 'Krishna Lal Chawla Vs. State of Uttar Pradesh and another' (2021) 5 SCC 435 to submit that complaint should not have been entertained and that it was the duty of the Magistrate as such to ensure that frivolous litigation was not initiated by the complainant.
50. Mr. Soni counsel for the complainant on the other hand has pointed out that on both the ration cards in question Ex.CW3/F and CW2/A, the addresses are different, wherein in one House No.1845/3, Rajeev Nagar, Gurgaon had been mentioned and on the other hand in the other one it has been shown as House No.1845, 8 Biswa, Gurgaon village. It is submitted that the different addresses as such have also been noticed by the Magistrate while noticing the writing in the address (Ex.CW4/A) which was stated to be have been done by Sukhbir Kataria, in view of the statement of CW-4 Rakesh Kumar. It is further contended that the photographs are also of same set of persons in both the ration cards. Form no.6 which was filled up by petitioner no.1 shows address of 8 Biswa, Gurgaon village. It is submitted that the other documents were produced in the Court as certified copies and were part of the official record and Section 63 of Indian Evidence Act, thus, would be applicable. Reference is made to the voter list to show that the petitioners name were shown for Booth no.18 at Serial No.600, 605, 607, 608, 613, whereas 46 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -47- petitioners No.1 and 3 were also shown having another vote at Serial No.599 and 603. Similarly the name of Suman petitioner no.5 was also figuring at Serial No.770 for booth no.18. Accordingly, reliance was placed upon the order of the Sessions Judge 13.03.2019 (Annexure P-3) to submit that there is a mere irregularity and Section 465 Cr.P.C. would be applicable. Reliance was also placed upon Section 397 (3) Cr.P.C., that there was a bar to file second revision and, therefore, powers under Section 482 Cr.P.C., would not be utilized for the said purpose, while placing reliance upon the judgment passed in 'Prem and others Vs. Budh Ram' 2000 Crl. Law Journal 790.
Facts of CRR-2265-2019
51. The petitioner in the present case is the complainant Om Parkash, who is aggrieved by the order of the learned Additional Sessions Judge, Gurugram dated 10.05.2019 who while exercising the revisional powers had set aside the order dated 12.11.2018 (Annexure P-1), whereby charge had been framed against the accused Sukhbir Kataria. While allowing the revision, it was held that no prima facie case is made out for offences under Sections 420, 467, 468, 471, 120-B IPC, but only a prima facie case for the offence punishable under Section 31 of the Representation of People Act, 1950 is made out. Thus, in the present set, a reverse proposition as such is inter se subsisting to the extent that in the other set of cases the summoning order was never passed under Section 31 of the 1950 Act.
52. The allegations in the FIR No.261 dated 06.05.2015 against 47 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -48- the accused Sukhbir Kataria were that his co-accused, one Pardeep was underage and his Form No.6 was filled up by him and there was no recommendation of the Block Level Officer and the signatures of the AERO all appears to be forged. Neither the residential house nor the original ration card or school certificate had been verified. After investigation the report under Section 173 Cr.P.C. (Annexure P-2) was submitted, in which relevant documents seized during investigation were relied upon. It was noticed that Pardeep's date of birth is 11.04.1992 as per his school record, but it had been mentioned as 11.04.1990 The tampering was stated to have been done to show his age proof for obtaining the Voter ID. The same was stated to be in collusion with the main accused Sukhbir Kataria, the MLA candidate from his village with the aid of Adarsh Bala appointed as BLO in the election department.
53. Similar allegations were regarding one Manoj though he never joined investigation and the investigation qua him is stated to be incomplete whose name had been recommended by one Satbir who is stated to be his uncle. Apparently, the police in the challan recorded the statement of Pardeep and also an affidavit which he had submitted regarding the allegations of tampering with the mark-sheet and by scanning and changing the date of birth and shifting the blame upon Sukhbir Kataria. Therefore, challan was presented against accused Sukhbir Kataria, Pardeep and Adarsh Bala. The charge was framed by the JMIC on 12.11.2018, wherein it was wrongly mentioned that one Manoj Kumar was minor, but to get undue advantage in the Assembly 48 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -49- Election of Gurugram, accused Sukhbir Kataria had prepared the forged ID proof and mark-sheet of Manoj by altering his date of birth. Resultantly, the Court dismissed the application for discharge and came to the conclusion that a prima facie case punishable under the provisions of IPC and Section 31 (wrongly mentioned as Section 38) of the Representation of People Act, 1950 is made out.
54. The said order was challenged in revision by one of the accused Sukhbir Kataria and the reasoning to set aside the said order was that at the time of framing the charge the Court has not to make roving inquiry and assess and weigh the offence meticulously. It has merely to see whether sufficient material is there on record to proceed against the petitioner and if the material on record is unrebutted and does not make out a prima facie case the charge is not to be framed. While referring to the provisions of Section 415, 420, 467, 471, 29 and 30 IPC, it was held that Court cannot act merely as post office or mouth piece of prosecution and if two views are possible, the Judge has a right to discharge the accused. Reference as such had not been made by the JMIC in respect of Pardeep whose date of birth had been changed. Rather the name of Manoj Kumar whose Form No.6 was got filled in the handwriting of the main accused had been taken into consideration and the crucial facts had not been taken into account. It was held that there is no delivery of property to the accused and any inducement. Form No.6 cannot be termed as a document of valuable security and prima facie there is no intention of the person filling it to cause damage or injury to the public or to any person.
49 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -50- It was noticed that original Form No.6 was not available, though the original mark-sheet of Pardeep was on the file and there is no alteration, addition or deletion in the original certificate. Adarsh Bala, who was the BLO was stated to be responsible for verification of the details, but the form was also signed by the Supervisor and by Election Registration Officer and the form may have been verified rightly or wrongly by her, which is stated to have been submitted by accused Pardeep. Reference was also made to the observations of the learned Additional Sessions Judge, while granting the anticipatory bail and accordingly a finding was recorded that only offence under Section 31 of the Representation of People Act, 1950 is made out.
Arguments
55. Counsel for the complainant has thus rightly submitted that the order is not justified, while referring to the photocopy of the record, which was summoned. Reliance was placed upon the Form No.6, which had been filled out in which the date of birth was shown as 11.04.1990, which had also been signed by Adarsh Bala. It is pointed out that the Middle Examination Certificate showed the year of birth as 1990 and the said document had been attached with Form No.6. It is further pointed out that the original of the same was also on the record which showed the year of birth as 1992. The recovery of the same had been effected from Pardeep during the investigation. The certificate from Santoshi High School, Gurugram would go on to show that the year of birth was also 1992. It is submitted that a disclosure statement as such had also been 50 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -51- made by the accused, which has been appended also as an annexure with the present petition in which accused Pardeep had stated that Sukhbir Kataria had increased the age by two years in the certificate and also pressurised him for casting the fake/forged vote during 2009 elections.
56. Reliance was also placed upon the fact that the card was got issued from the office of the Election Commission of India and there was also an affidavit dated 06.10.2015 given by the accused, whereby onus had been shifted to the present accused Sukhbir Kataria and as recorded that vote was also cast by Pardeep. It is, thus, argued that in such circumstances it was not justified for the revisional Court as such to set aside the order of framing charge under the provisions of IPC, since there was prima facie evidence on record. The provisions of IPC were referred to point out that ingredients of offences were clearly made out and the order was not justifiable.
57. Mr. Narwana, on the other hand representing the main accused has submitted that the original form no.6 was not on record and there was no recovery made from the accused and there was no admissible evidence available on record for framing of charge. The credibility of the complainant was sought to be shattered on the fact that he is a life convict and the Magistrate had also wrongly framed the charge while referring to the case of the co-accused against whom investigation is yet to be completed. Resultantly, he argued that even admissibility of the statements made by the co-accused as such could not be taken into consideration and also the affidavit whereby he shifted the blame on the 51 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -52- accused Sukhbir Kataria. Resultantly, reliance was placed upon the judgment of the Apex Court passed in Suresh Budharmal Kalani (supra) to argue that mere confession of the co-accused as such and the confessional statements could not be used as a basis of framing of charge and even if it it was unrebutted it was a case of discharge. Discussion
58. In the present facts and circumstances as noticed above proceedings are emanating from six complaints filed, whereas one case arises out of police proceedings. The basic principle which is to be seen in the complaint cases firstly what is the power and jurisdiction of the Magistrate as such when he issuing summons and taking cognizance of the offenders and the parameters of jurisdiction of the Court under Section 482 Cr.P.C.
59. Under Section 2 (d) of the Cr.P.C. the definition of complaint is given whereas Section 2(g) defines an enquiry which is to be conducted other than a trial, by the Magistrate. The same read as under:
"2 (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
xxxx xxxx xxxx
(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;"
60. A perusal of the above would go on to show that when action is sought to be taken against the known persons who have committed a offence, the same is to be enquired into by the Court. Chapter-XIV of 52 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -53- Cr.P.C. contains Section 190, which shows that the the Magistrate is empowered to take cognizance of an offence in 3 eventualities of an offence;
(i) upon receiving of a complaint of facts which constitutes such offence is one situation;
(ii) secondly upon a police report of such facts and
(iii) thirdly upon information received from any person other than a police officer or upon his knowledge that such offence has been committed.
61. Thus, these are the conditions in which summoning of an accused person can take place. A Magistrate taking cognizance of the offence on a complaint under Chapter-XV under Section 200, is required to examine upon oath the complainant and the witnesses present, if any, and the substance of such examination is to be reduced in writing and to be signed by the complainant and the witnesses and also by the Magistrate.
62. Under Section 202, the Magistrate has the power to enquire into the case himself or direct an investigation to be made by a police officer or by such person he may think fit, for the purpose of deciding whether there is sufficient ground for proceeding. The consideration of the statements on oath, if any, of the complainant and the witnesses while keeping in mind the result of the enquiry or investigation has to be done. Power also vests with the Magistrate to dismiss the complaint if he finds that there is no ground for proceeding. However, for such cases, he has 53 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -54- to record his reasons for doing so under Section 203.
63. The summoning order is passed under Chapter-XVI and process is issued when the Magistrate comes to the opinion that there is sufficient ground for proceeding. Trial of warrant cases by the Magistrate is provided under Chapter-XIX which would be applicable in six cases herein. Under Section 244, when the accused appears, the Magistrate is to hear the prosecution and take such evidence as may be produced in support of the prosecution and applies to cases instituted otherwise than the police report. After taking all the evidence referred to in Section 244, the Magistrate has an option under Section 245 to discharge the accused, if no case is made out against him on the unrebutted evidence by recording reasons that his conviction would not be warranted. However, where there is ground for presuming that the accused has committed an offence triable under the said Chapter, he will try the accused by framing a charge in writing against the said accused, under Section 246. Liberty is also given to cross-examine any witness of the prosecution whose evidence has been taken and the witnesses can be recalled after cross- examination for re-examination by the accused. It is, thereafter, under Section 247, the evidence of the defence can be called upon and then the provisions for acquittal or conviction follow.
64. Thus, the procedure prescribed gives sufficient liberty to the Magistrate to enquire into the complaint and take into consideration not only the facts as stated in the complaint but also the statement of the witnesses for the purpose of enquiry to issue process and take cognizance 54 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -55- of all the offences which had been allegedly committed. In Suman Vs. State of Rajasthan & another 2009 (4) Crimes 205, it was held by the Supreme Court that it was for the Court to proceed against such person if from the evidence collected or produced in the course of any enquiry and the trial of offence, it was prima facie of the opinion that the person had committed an offence and he could be tried along with other accused.
65. In the case of in Bhushan Kumar & another (supra), it has been held that it is not for the High Court to substitute its own discretion for that of the Magistrate who had decided to summon the accused and to examine the case on merits. Reliance was placed upon the earlier decision in Smt.Nagawwa Vs. Veeranna Shivalingappa Konjalgi & others (1976) 3 SCC 736.
66. Similarly, in Sunil Bharti Mittal (supra), the Supreme Court has held that the Magistrate is deemed to have taken cognizance of the offence and even if the offender is not known or named when the complaint is filed or when FIR was registered and his name may transpire during investigation or afterwards. It was, accordingly, held that the Magistrate has not only powers to issue process in police cases against persons who were not charge-sheeted provided that there is sufficient material to show the said persons involvement on an independent application of mind by the Court. While discussing the provisions of Section 204 Cr.P.C., which are pertaining to the complaint cases herein, it was held that on the examination of the complainant and his witnesses or report of enquiry, if a prima facie case is made out, it also give powers to 55 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -56- the Court to issue process. Whether the person is likely to be convicted or not, was not a ground not to issue process and only due application of mind was stated to be the sole consideration. If the same had been done and the proper satisfaction was there, the summoning order would be held to be justified. Relevant portions of the judgment read as under:
"47. We have already mentioned above that even if the CBI did not implicate the appellants, if there was/is sufficient material on record to proceed against these persons as well, the Special Judge is duly empowered to take cognizance against these persons as well. Under Section 190 of the Code, any Magistrate of First Class (and in those cases where Magistrate of the Second Class is specially empowered to do so) may take cognizance of any offence under the following three eventualities:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts; and
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
This Section which is the starting section of Chapter XIV is subject to the provisions of the said Chapter. The expression "taking cognizance" has not been defined in the Code. However, when the Magistrate applies his mind for proceeding under Sections 200-203 of the Code, he is said to have taken cognizance of an offence. This legal position is explained by this Court in Chief Enforcement Officer v. Videocon International Ltd. in the following words: (SCC p.499, para 19) "19. The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in 56 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -57- criminal law. It merely means 'become aware of' and when used with reference to a court or a Judge, it connoted 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. 'Taking Cognizance' does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence."
48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.
49. Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards.
50. Person who has not joined as accused in the charge-sheet can be summoned at the stage of taking cognizance under Section 190 of the Code. There is no question of applicability of Section 319 of the Code at this stage (See SWIL Ltd. v. State of Delhi. It is also trite that even if a person is not named 57 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -58- as an accused by the police in the final report submitted, the Court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (See Union of India v. Prakash P. Hinduja and another). Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer.
51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
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53. However, the words "sufficient grounds for proceeding"
appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.
67. In Sonu Gupta (supra), the dispute was pertaining to offence under Section 466, 468, 471 IPC arising out of a matrimonial alliance and the forgery committed regarding the FIR pertaining to Sections 498A and 406 IPC. The Magistrate had summoned the accused on the basis of the complaint. The learned Sessions Judge had upheld the summoning order qua one set of accused, but set aside the same against another set. The matter was taken to the High Court, wherein the summoning order of the Magistrate was also set aside with directions to appear before the JMIC for adducing evidence. It was held that the complainant had liberty to produce alleged documents which could prove forgery and send the same to the expert for examination of the documents and signatures of the complainant. Resultantly, it was held by the Apex Court that at the time of summoning and taking cognizance, the Magistrate has only to apply his mind whether prima facie case is made out and he is not required to evaluate the material or evidence of the complainant. The exercise to find out whether the materials would lead 59 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -60- to conviction or not was not, to be gone into. Resultantly, it was held that the High Court had erred by issuing such directions and has even considered to evaluate the defence case and it was not the appropriate stage. Accordingly, the same was set aside restoring the summoning order and also setting aside the order of the Sessions Judge, wherein summoning order was set aside qua one set of accused. Relevant portion of the said judgment reads as under:-
"7. Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accused persons before the courts below or in this Court lest it prejudices one or the other party in future.
8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not."
68. Similarly, in the case of Afroz Mohammed Hasanfatta 60 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -61- (supra), the power of the Courts to take cognizance was discussed both on the police report and in cases instituted other than a police report. It was, accordingly, held that the Court is not required to evaluate the evidence on its merits and whether there is sufficient material to record a conviction or not, was not to be gone into and the Court has not to evaluate the evidence at that stage. The relevant portion of the said judgment reads as under:
"20. In a case instituted on a police report, in warrant cases, under Section 239 Cr.P.C., upon considering the police report and the documents filed along with it under Section 173 Cr.P.C., the Magistrate after affording opportunity of hearing to both the accused and the prosecution, shall discharge the accused, if the Magistrate considers the charge against the accused to be groundless and record his reasons for so doing. Then comes Chapter XIX-C-Conclusion of trial-the Magistrate to render final judgment under Section 248 Cr.P.C. considering the various provisions and pointing out three stages of the case. Observing that there is no requirement of recording reasons for issuance of process under Section 204 Cr.P.C., in Raj Kumar Agarwal v. State of U.P. and another 1999 Cr.LJ 4101, Justice B.K. Rathi, the learned Single Judge of the Allahabad High Court held as under:-
"8.......As such there are three stages of a case. The first is under Section 204 Cr. P.C. at the time of issue of process, the second is under Section 239 Cr. P.C. before framing of the charge and the third is after recording the entire evidence of the prosecution and the defence. The question is whether the Magistrate is required to scrutinise the evidence at all the three stages and record reasons of his satisfaction. If this view is taken, it will make speedy disposal a dream. In
61 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -62- my opinion the consideration of merits and evidence at all the three stages is different. At the stage of issue of process under Section 204 Cr. P.C. detailed enquiry regarding the merit and demerit of the cases is not required. The fact that after investigation of the case, the police has submitted the charge sheet, may be considered as sufficient ground for proceeding at the stage of issue of process under Section 204 Cr. PC., however subject to the condition that at this stage the Magistrate should examine whether the complaint is barred under any law at the stage of Section 204 Cr. P.C. if the complaint is not found barred under any law, the evidence is not required to be considered nor the reasons are required to be recorded. At the stage of charge under Section 239 or 240 Cr. P.C. the evidence may be considered very briefly, though at that stage also, the Magistrate is not required to meticulously examine and to evaluate the evidence and to record detailed reasons.
9. A bare reading of Sections 203 and 204 Cr.P.C.
shows that Section 203 Cr.P.C. requires that reasons should be recorded for the dismissal of the complaint. Contrary to it, there is no such' requirement under Section 204 Cr.P.C. Therefore, the order for issue of process in this case without recording reasons, does not suffer from any illegality."(emphasis supplied) We fully endorse the above view taken by the learned Judge.
21. In para of Mehmood Ul Rehman, this Court has made a fine distinction between taking cognizance based upon charge sheet filed by the police under Section 190(1)(b) Cr.P.C. and a private complaint under Section 190(1)(a) Cr.P.C. and held as under:-
"21. Under Section 190(1)(b) CrPC, the Magistrate has 62 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -63- the advantage of a police report and under Section 190 (1)( c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."
22. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding....."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is " there is ground for presuming that the accused has committed an offence..... ". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C."
69. To be fair to the Senior Counsel who has relied upon the judgment passed in Pepsi Foods Ltd. (supra) and Krishna Lal Chawla (supra) to point out that Sukhbir Kataria was being prosecuted with malafide intention and, therefore, it was a frivolous litigation which be 63 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -64- nipped in the bud and it was the responsibility of the lower judiciary as such. In Krishna Lal Chawla (supra) there was repeated litigation inter se the parties and on the same cause of action, which has led to the same observations. Rather the Apex Court has held that the Magistrate is not a silent spectator as such and if an offence as is made out and there has been proper application of mind, he would be well justified in issuing summons.
Discussion qua each set of case keeping in view the settled position of law and the parmaters of jurisdiction defined above
70. Thus, keeping in view abovesaid principles in mind, this Court shall proceed to examine whether the summoning order passed in each case are justified in the facts or circumstances.
71. In CRM-M-53599-2018, the complaint pertains to a forged ration card bearing No.4285832 regarding House No.1250 in which accused No.1 to 7 names figured. The only averment qua the petitioner who was accused No.27 is that he in his own handwriting and declaration had filled up the columns in Form no.6, on the basis of which the electoral identity cards were issued. Allegations were that 7 such like cases are pending against him in the Courts at Gurgaon. It is not disputed that a report was also received by the Magistrate from the DCP (Headquarter) on 15.05.2014, in which it was mentioned that there is no opinion of handwriting expert regarding the forgery as such which had been mentioned in the complaint which is pertaining to filling up of form no.6. In spite of that the summoning order was passed while noting the said fact.
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72. A perusal of the summoning order dated 21.07.2014 (Annexure P-3), which has been reproduced above in paragraph no.9 would also go on to show that there is no sufficient material as such which had been produced on record by the complainant in the Court against the petitioner, apart from the solitary statement of CW-6 Sunita that Form no.6 had been filled by the present petitioner. The said statement has been noticed on account of the fact that she had also worked as a Panch alongwith the petitioner accused, who was the Sarpanch at that time. There is no other material which the Trial Court as such had discussed and, therefore, there is no sufficient material which had discussed and, therefore, this Court is not able to appreciate the manner in which the summoning order was passed.
73. It is also to be noticed that at one stage the complaint was sought to be withdrawn for reasons best known to the complainant when it was fixed for arguments on the summoning point. However, the Court had declined the same on the ground that it was related to non-bailable and cognizable offences and had referred the matter for inquiry by the police under Section 202 Cr.P.C on 11.03.2014. The said order reads as under:-
"Present: Complainant in person with counsel. Today the case was fixed for argument on summoning point. Complainant has furnished an affidavit with the prayer to withdraw the complaint. Since, the complaint is related to non bailable and cognizable offences, therefore, the same cannot be allowed to be withdrawn. I am of the view that the inquiry by the police under 202 Cr.P.C.
65 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -66- would help the court in appreciating the preliminary evidence led by the complainant. The copy of the complaint is send to DCP (HQ), Gurgaon for conducting inquiry under Section 202 Cr.P.C. The report of DCP (HQ) is awaited for 18.04.2014.
(Ashok Kumar) JMIC/GGN/11.03.2014"
74. Similarly, perusal of the report of the police dated 15.05.2014 would go on to show that the Investigating Officer had submitted that the issue of forgery could not be commented upon without examining the handwriting expert. No effort as such had been made by the complainant also to do the said exercise. It is not disputed that Sunita is the only witness, who stated she can recognise the signatures of the petitioner as noticed above. She is none else but the President of the Matdata Jagrook Manch, Gurgaon, which would be clear from the complaint, which had been initially given to the police on 29.10.2012, whereas the complainant is the General Secretary of the said Manch. It has also come on record that she was Panch in the village of the petitioner alongwith him and from the opposite camp. In such circumstances, being from the opposite camp her statement should have been taken with a pinch of salt.
75. In a similar kind of proceeding on an earlier occasion this Court in CRM-M-39202-2018 'Sukhbir Kataria Vs. Om Parkash' decided on 27.04.2021 had also held that in the absence of an handwriting expert, the summoning could not be justified and it could not be held that the petitioner had filled up the Form No.6. The benefits of 66 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -67- observations passed in the said order would also, thus, be applicable to the petitioner.
76. In the said case, it was noticed that the summoning of Sukhbir Kataria on the basis of evidence as such of rival Member of the Panchayat on the strength of photocopies of documents. The summoning Court had come to the conclusion that the handwriting and signatures read in comparison to the admitted signatures were rather of one and the same person. It was, accordingly, noticed that in the absence of the opinion of the expert evidence and even in the absence of originals of form no.6, the summoning Court was not justified and the Magistrate could not be a silent spectator at the time of recording of preliminary evidence. Reliance was placed upon the judgments of the Apex Court 'V. Sujatha Vs. State of Kerala and others' 1994 Suppl. (3) SCC 436, wherein convictions had been set aside while noticing that the originals had not been produced and the handwriting expert expressed his inability to give any opinion on the photostat copy. Reliance had also placed been upon the judgment passed in 'Budh Ram Vs. State of Hayrana', 2010 (2) RCR (Crl.) 352, wherein also conviction had been set aside in the absence of the comparison of the thumb impressions of the vendors, on the copies of the sale deeds, with the standard or specimen thumb impressions of the original owners.
77. It is also to be noticed that solely on the statement of Sunita the summoning had been done and she being a office bearer of the Manch in which the complainant is Secretary and also belonging to the opposite 67 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -68- camp being a Panch of the same village, her solitary statement would not constitute sufficient material as such, merely because the petitioner has a large number of cases pending against him on the same set of allegations. It is relevant to note that this Court is interfering in that set of cases where the petitioner cannot be directly connected with the other co- accused and dismissing the petitions where the petitioner is related to the other co-accused who are related to him in the form of his son, nephew, brothers-in-law and personal assistants, since the scope of criminal conspiracy would be wide enough to cover his involvement in that set of cases. Nothing was shown to the Court by the counsel for the complainant that the other co-accused as such are connected with the petitioner and, therefore, on mere bald averments that he had filled out the blank ration cards or form no.6 would not constitute prima facie any sufficient material as such. Therefore, the summoning orders cannot be justified in those set of cases.
78. Resultantly, this Court is of the opinion that the summoning order as such needs to be revisited by the Magistrate by examining the issue afresh as to whether the sufficient material is made out to summon the accused petitioner and whether the material and statements recorded would prima facie show that there was any offence of forgery committed by the petitioner. Resultantly, the petition is allowed to the extent that the summoning order dated 21.03.2014, the discharge order dated 07.04.2018 and the dismissal of the revision petition on 06.08.2018 suffer from said infirmities, whereby this aspect was not noticed. Accordingly, 68 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -69- the Magistrate shall scan the material before it and pass a fresh summoning order qua petitioner Sukhbir Katria.
79. In CRM-M-54951-2018 the allegations are of the forgery committed by Nitish the minor son of the petitioner himself, whereby he had been shown as son of one Raj Kumar and got his vote made containing his photograph. Similar allegations in the complaint are qua accused no.9 and 10 namely Rajesh Rana and Devender Rana sons of Haripal Rana, who are brothers-in-law of the petitioner, who himself had arrayed as accused no.14. It is pertinent to mention that in the quashing petition also there is no denial of the said factum of close relationship inter se the parties and it has neither been averred that the said persons arrayed as accused are not brother-in-laws of the petitioner. The other accused are also stated to be personal assistants and personal secretaries of the petitioner. Neither it has been pleaded that petitioner's son is not Nitish and the fact that he was already major and having a separate vote.
80. Counsel for the complainant is, thus, well justified to submit that the ambit of Section 120-B IPC is wide enough and in view of close relationship inter se of minor son of the petitioner and his real brother-in- law's being involved, this Court is of the opinion that the petitioner cannot get any benefit that sufficient material had not been placed before the Magistrate and that the summoning order was without any substance.
81. The accused is yet to lead the evidence at the pre-charge evidence stage and therefore, the petitioner will get sufficient time as such when the said witnesses are to be examined and therefore, it is not 69 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -70- case to stifle the criminal prosecution at the preliminary stage and the summoning order thus is not liable to be quashed. The petition is, accordingly, dismissed.
82. In CRM-M-57177-2018 the allegations qua the petitioner who is accused no.10 are that the ration card bearing no.657457 had been prepared by him in his handwriting and the details of the family members had also been in his own handwriting. The beneficiaries of the ration card are accused no.5 to 8 i.e. one Inderjit and his family members. The declaration on form no.6 and 8 was also stated to have been filled by him on the basis of which fake votes had been prepared. The Magistrate had not send the complaint under Section 156 (3) Cr.P.C., for registration of the FIR nor any report under Section 202 Cr.P.C. was called for.
83. The summoning order which has been reproduced above would also go on to show that apart from examining the statements of the witnesses and relying upon Sunita's deposition that he had filled up the form of Inderjit, there is no such other credible evidence or material on record, which has been discussed. CW-5 Om Parkash only talks about a blank ration card filled in the handwriting of the accused Sukhbir Kataria and in the absence of any handwriting expert produced to substantiate the same, the summoning order of the Magistrate as such does not contain any reason as to what material there was on record, vide which the petitioner had been summoned. Merely because some other accused as such have got fake votes created would not be a ground as such to summon the petitioner until a finding was recorded that he was 70 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -71- responsible for the forgery on the ration card, which could only be done if there was sufficient material. Merely because other accused have got multiple votes, the petitioner cannot be held to be in conspiracy with them. The role of Sunita had already been discussed in CRM-M-53599- 2018 and, therefore, merely on her statement the summoning cannot be held to be justified. Accordingly, the petition is partly allowed by setting aside the summoning order dated 16.12.2013 and liberty is given to the Magistrate to re-examine the material on record and if any case is made out pass a appropriate order thereafter.
84. In CRM-M-54463-2018 the allegations qua the petitioner are of forgery in the ration card bearing No.406494 which is in the name of accused no.1 and 2 who are mother and daughter. The Magistrate also noticed that multiple votes had been prepared on the basis of forged and illegal ration card and came to the conclusion that there was sufficient material as such to proceed against the accused.
85. A perusal of the record would go on to show that the same does not exist in record of the Food & Supplies Department and information of the same had been sought for and the reply as such was received there under the RTI Act, 2005 that the same is not available. The persons mentioned in the ration card would show that one Rajinder as such was the husband and father of the other two accused and the electricity bill of one Rajinder Singh had been used for the purpose of proof of residence. The material thus which had been placed on record are the certified copies under the RTI Act and, therefore, it would not be 71 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -72- said that there is no sufficient material before the Court on the basis of which the summoning order had been passed. However, there is nothing to show that the petitioner can be connected with the other accused. He has only been roped in because of the statement of Sunita, the rivalry with whom has already been noticed above in CRM-M-53599-2018 and CRM-M-57177-2018
86. In such circumstances, once there was no sufficient material showing that the ration card itself was forged by the petitioner except the bald statement of Sunita, the Trial Court was not correct as such to pass the summoning order against the petitioner. Therefore, it is apparent that the Magistrate was not justified in summoning the petitioner in the absence of any handwriting expert's opinion who had compared the handwriting of the petitioner with the alleged entries made by him on the ration card in question. Therefore, fault as such can be made out with the summoning order. Accordingly, the present petition stands allowed. It would be open to the Trial Court to scan the material before it and pass a fresh order against the petitioner in case the Court feels the need.
87. In CRM-M-947-2019 the petitioners are accused No.7 to 10 and the allegations qua them are of making multiple votes and giving false declaration in Form no.6/8. In the present case on 19.09.2013 the complainant evidence had been recorded and a report had been called for under Section 202 Cr.P.C. though the request for sending the matter for investigation under Section 156 (3) Cr.P.C., had been declined. The report under Section 202 Cr.P.C. was received by the Magistrate on 72 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -73- 02.12.2013. The statement of the Investigating Officer, Sub-Inspector Giriraj had been recorded that the complete record had not been supplied by the office of the Tehsildar Election Commission and accordingly, notice had been issued to the concerned clerk. Relevant orders dated 19.09.2013 and 02.12.2013 read as under:-
"Present: Complainant in person.
Complaint received by way of assignment. It be checked and registered. A request for sending the case to police station under Section 156 (3) Cr.P.C. is made. No ground for sending the complaint under Section 156 (3) Cr.P.C. is made out. Therefore the request is declined.
One CW complainant Om Parkash in preliminary evidence recorded. No other CW is present. At this stage, it is necessary to send the matter to the SHO concerned for further and proper investigation into the matter. Hence the case be sent to SHO concerned. Report under section 202 Cr.P.C. be awaited for 31.10.2013.
(Amberdeep Singh) JMIC,Gurgaon. 19.09.2013"
XXXXXXXXXXXXXXXXXXXXX "Present: Complainant in person.
Report under section 202 Cr.P.C. received.
However, SI Giriraj has appeared in person and stated that the complete report is not submitted because Daya Chand Clerk office of Tehsildar Election Commission has not supplied him the requisite documents and also misbehaved with him. Statement of SI Giriraj also recorded. Heard. Let show cause notice to Dayanand Clerk office of Tehsildar Election Commission Gurgaon be issued for 10.12.2013.
(Amberdeep Singh) CJ (JD), Gurgaon. 2.12.2013"
88. It is pertinent to notice that the Sub-Inspector had also got a 73 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -74- DDR lodged on 25.11.2013 on account of the interference in the investigation. Eventually on 01.05.2014 the report was received. It is to be noticed that petitioner no.3 Parmeshwari Devi who had been shown as daughter of Bhim Singh is the sister of the petitioner Sukhbir Kataria. She had been shown at Sr.no.295 and 852 as voter at two places in booth no.133 and her description is at one place had been shown as wife of Sahdev to hide her identity. Similarly, it is pointed out that Parmeshwari Devi is also the real sister and other family members are brother-in-law etc. and the Magistrate had already noticed that all are closely related and, therefore, the allegations needs to be answered by the summoned persons. The summoning order has already been reproduced above in paragraph no.42.
89. In such circumstances, it would not lie in the mouth of the counsel for the petitioner that only an offence is made under the Representation of People Act and it would be barred by limitation. The judgment passed in the case of Rajesh Joshi (supra) would not be applicable in the facts and circumstances, as it was not a case where there was forgery of documents and it was a case of votes at two places and in such circumstances the petition was allowed by this Court and only the offences under Section 17 and 31 of the Act were involved.
90. In the present case there are more serious allegations regarding forgery of public documents and there are charges of impersonating and regarding pasting of photographs and showing persons under different identities and therefore, it would be a matter, which has to 74 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -75- be gone into by the Trial Court whether the offences are made out or not and the criminal prosecution cannot be stifled at the threshold. Thus, once offence of forgery of public documents under IPC is prima facie made out and offences are punishable upto 7 years, the bar of limitation would not arise under Section 468 Cr.P.C. Resultantly, the present petition is dismissed.
91. In CRM-M-21528-2019 the allegations against the petitioners who are accused no.1 to 5, are of preparation of different identity cards on the basis of fake documents. Sukhbir Kataria had chosen not to challenge the said summoning order, which was also against him. The accused persons are stated to be his personal secretaries and other relatives. Ration card bearing No.602480 which has been brought on record as Ex.CW3/F and Ex.CW2/A shows two different addresses. It is Bimla Devi, who is the main beneficiary of the ration card and her address is shown as House No.1845/3, Rajeev Nagar, Gurgaon alongwith other family members, whereas in the other ration bearing the same no.602480 the address is shown as 1845, 8 Biswa, Gurgaon and the same person and the same family members photograph is attached. Thus, it is apparent that in such circumstances the Court was well justified in summoning the accused. Further issue which would arise there is that the petition under Section 482 Cr.P.C. is filed, would be a second petition, since the revision petition had already been dismissed on 13.03.2019 on merits in the present case and, therefore, this petition would not lie in the facts and circumstances as there is no such 75 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -76- extraordinary circumstances to entertain it. Once there is a bar under Cr.P.C. merely by titling the petition under Section 482 Cr.P.C., the bar as such cannot be got over. Accordingly, the present petition stands dismissed.
92. Regarding the FIR case i.e. CRR-2265-2019 this Court is of the opinion that the revisional Court was not correct to come to the conclusion that the provisions of IPC were not made out, specially keeping in view the fact that Section 30 of the IPC defines valuable securities, which is a wide term pertaining to a document whereby any legal right is created or extended. The Constitution of India provides elections to the Legislative Assembly which have to be held on the basis of adult suffrage and every person who is a citizen of India and not less than 18 years of age, he is entitled to be registered as a voter at any such election.
93. The offences of cheating is defined under Section 415 IPC and the dishonest inducement of a person by fraudulent intent or taking the consent of any person and intentionally inducing him to do so or omit to do anything which are causing damage or harm to the person would amount to cheating.
94. Section 420 talks about valuable security and a person who dishonestly induces the person deceived to deliver any property to any other person or to make, alter or destroy the whole or any part of a valuable security shall be punished. In such circumstances, the right to exercise franchise as such also cannot be kept out of the ambit of 76 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -77- valuable security which is given under Constitution of India and if a wrong inducement has been made, prima facie provisions of IPC would come into play and the view taken by the revisional Court does not keep these factors in mind and cannot be upheld or stated to be justified
95. Similarly, Section 467 IPC talks about forgery of a valuable security and Section 471 IPC talks about fraudulently or dishonestly use as genuine, a document which a person knows or has a reason to believe to be a forged document or electronic record and if there is knowledge a person has forged such documents and uses the same, the offences would be made out. The provisions of Section 120-B are of wide ambit on criminal conspiracy. The provision provides as such that if there is no express provision made in the Code for the punishment of such a conspiracy the party shall be punished in the same manner as if he had abetted such an offence. Therefore, it was rightly not held that offences under the provisions of IPC prima facie were not made out in the facts and circumstances. The order cannot be sustained as there is prima facie sufficient material on the file of the Trial Court in the FIR case.
96. It is also to be noticed that the record would go on to show that the original Form No.6 was appended with the challan and, therefore, it is for the Trial Court to make a inquiry whether the original form no.6 is available on the record and since during the course of investigation the Investigating Officer had seized the same.
97. If one is to look at the overall picture that serious allegations regarding creating of false votes by the petitioner by involving the 77 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -78- persons who are closely known to him including his son, his sister-in-law his Personal Secretaries and other close persons known to him. In such circumstances, this Court has also to be keep in mind the fact that the extra-ordinary jurisdiction of this Court is not meant to be exercised in favour of such offenders and is only to be done in cases where exceptional circumstances are made out.
98. The Apex Court recently in the case of 'Lakshman Sikngh Vs. State of Bihar (now Jharkhand)', Law Finder Doc Id # 1858333, while deciding the appeals against convictions pertaining to booth capturing and casting of bogus votes has held that the said offences are to be dealt with iron hand as it ultimately affects the rule of law and democracy and dilutes the right to free and fair election and cannot be permitted. Relevant portion of the said judgment reads as under:-
"10. In view of the above, we are of the firm view that the appellants are rightly convicted under Sections 323 and 147 IPC and sentenced to undergo six months simple imprisonment only for the said offences. Before parting, we may observe that though in the present case it has been established and proved that all the accused were the members of the unlawful assembly in prosecution of the common object, namely, "to snatch the voters list and to cast bogus voting" and have been convicted for the offence under Section 147 IPC, the trial Court has imposed the sentence of only six months simple imprisonment. In the case of People"s Union for Civil Liberties (supra), it is observed by this Court that freedom of voting is a part of the freedom of expression. It is further observed that secrecy of casting vote is necessary for strengthening democracy. It is further observed that in direct elections of Lok Sabha or State Legislature, maintenance of secrecy is a must and is insisted 78 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -79- upon all over the world in democracies where direct elections are involved to ensure that a voter casts his vote without any fear or being victimised if his vote is disclosed. It is further observed that democracy and free elections are a part of the basic structure of the Constitution. It is also further observed that the election is a mechanism which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Therefore, any attempt of booth capturing and/or bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy. Nobody can be permitted to dilute the right to free and fair election. However, as the State has not preferred any appeal against imposing of only six months simple imprisonment, we rest the matter there."
99. As also noticed above there are various stages in the proceedings which the petitioner will have where he can seek the valid discharge or dropping of the proceedings on account of the evidence which comes on record. It is not for this Court to examine the evidence and its admissibility at this stage, as prima facie sufficient material has been placed on record by the complainant in complaint cases and similarly in the investigation material has come on record to the extent that there was a valid Middle Class Certificate having a date of birth which did not entitle the co-accused Pardeep to obtain a Voter ID and caste his vote.
100. The judgment in the case of Suresh Budharmal Kalani (supra) relied upon thus would not be applicable in the facts and circumstances, since it was a case under the Terrorists and Disruptive Activities (P) Act, 1987. The petitioner in that case was stated to have 79 of 81 ::: Downloaded on - 15-10-2021 20:48:25 ::: CRM-M-53599-2018 and other connected cases -80- abetted the commission of murder of a rival gang member, wherein he has been implicated on the basis of confessional statement made by one co- accused who had been discharged from the case. Resultantly, it was held that the confessional statement as such of the co-accused were not admissible and the charge framed was set aside and the petitioner was discharged.
101. In the present case, where there is sufficient documentary evidence in the form of tampering having been done on the certificate of the co-accused and it is not only the statement of the co-accused which is in the form of incriminating material and, therefore, the said judgment is not applicable in the present facts and circumstances, once there is sufficient material on record collected by the investigating officer.
102. Thus, statutory power under Section 482 Cr.P.C., is only to be exercised in the rarest of rare case and where exceptional circumstances are made out as held in Kurukshetra University & another Vs. State of Haryana & another (1977) 4 SCC 451 and in Janata Dal Vs. H.S.Chowdhary 1992 (4) SCC 305, wherein it was held that legitimate prosecutions cannot be stifled by exercising the inherent powers under Section 482 Cr.P.C.
103. Thus, once there is sufficient alternative and efficacious remedy available to the petitioners during the trial, as noticed above, it would, thus, be not appropriate for this Court to exercise its extraordinary jurisdiction to quash the summoning orders under Section 482 Cr.P.C.
104. Resultantly, the present petitions are disposed of as under:-
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(i) CRM-M-53599-2018, CRM-M-57177-2018 and CRM-M-54463-2018 are allowed and the summoning orders dated 21.03.2014, 16.12.2013, 30.11.2013 and the discharge order dated 07.04.2018 and the dismissal of the revision petition on 06.08.2018 are set set aide. The Trial Court shall scan the material before it and pass a fresh summoning order qua petitioner Sukhbir Kataria, if so required.
(ii) CRM-M-54951-2018, CRM-M-947-2019, CRM-M- 21528-2019 stand dismissed.
(iii) However, CRR-2265-2019 filed by complainant Om Parkash is partly allowed by setting aside the order of the Additional Sessions Judge and directing the Magistrate to re-examine the material on record and pass fresh orders on framing of charge qua Sukhbir Kataria by taking into account whether there is sufficient material as such to proceed against under the provisions of IPC, since the charge under IPC had not been challenged by the other co-accused and they are facing trial under the same provisions.
(G.S. SANDHAWALIA)
October 14, 2021 JUDGE
Naveen
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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