Allahabad High Court
Neki Ram vs State Of U.P. on 22 August, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- CRIMINAL REVISION No. - 1856 of 1987 Revisionist :- Neki Ram Opposite Party :- State Of U.P. Counsel for Revisionist :- Brijesh Sahai Counsel for Opposite Party :- A.G.A. Hon'ble Sudhir Agarwal,J.
1. Heard Sri Bhvya Sahai, Advocate, holding brief of Sri Brijesh Sahai, learned counsel for revisionist, learned A.G.A. for State of U.P. and perused the record.
2. This criminal revision under Section 401 read with Section 397 Cr.P.C. has been filed aggrieved by judgment and order dated 03.12.1987 passed by Sri Y.K.Singhal, Vth Additional District and Sessions Judge, Saharanpur, in Criminal Appeal No.51 of 1985 whereby appeal was dismissed and judgment and order dated 07.02.1985 passed by Sri Vishram Singh, Magistrate Nakur, Saharanpur in Case No.502 of 1982 by which Revisionist was convicted under Sections 466 and 471 IPC and sentenced to undergo one year simple imprisonment and fine of Rs.100 under Section 466 IPC, and, six months' simple imprisonment and fine of Rs.50/- under Section 471 IPC, has been confirmed. Both the sentences were directed to run concurrently.
3. Learned counsel for Revisionist contended that, if a document of a Court is allegedly forged, no cognizance can be taken under Section 466 IPC unless complaint is made by Court itself, which has not been done in the present case. Therefore, entire proceedings are illegal. He further submitted that Revisionist was a 'Peon' in Election Tribunal, who was deputed duty of serving summons and this was a part of an 'official duty' to be discharged by him, thus, without sanction under Section 195 or 197 Cr.P.C., cognizance could not have been taken. Since in the present case, no such sanction was obtained, therefore, entire proceedings are illegal.
4. Learned A.G.A. submitted that Section 466 IPC is applicable where a document is forged, and purported to have been made by a 'public servant' in official capacity and therefore, it is rightly applied. Further Section 195 Cr.P.C. has no application since 'Election Tribunal' is not a 'Court' in terms of Section 195(3) Cr.P.C. Section 197 is also inapplicable since Revisionist is not a person who is to be removed with the sanction of State or Central Government.
5. I have examined the submissions advanced by learned counsel for parties and perused the record.
6. Sections 466 and 471 IPC, as applicable at the relevant time, reads as under :
"466. Forgery of record of Court or of public register, etc.-Whoever forges a document, purporting to be a record or proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
"471. Using as genuine a forged document.-Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document."
7. On perusal of above provisions, I find that in order to attract Section 466 IPC, following ingredients have to be shown :
(i) The document is question was a forged document.
(ii) It was forged by Accused;
(iii) Such document is purported to be :
(a) A record of the proceeding of Court of Justice;
(b) A Register of Birth, baptism, marriage or burial.
(c) A Register kept by public servant.
(d) A certificate or document purporting to be made by a public servant in his official capacity.
(e) An authority to institute or defend a suit or take any proceeding therein or to confess judgment, or
(f) A power of attorney.
8. The term 'Forgery' has been defined in Section 463 IPC and what would constitute 'making a false document' has been defined in Section 464 IPC. Sections 463 and 464 IPC, as applicable at the relevant time, read as under :-
"463. Forgery.-Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
"464. Making a false document.-A person is said to make a false document-
First-Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration."
9. In the present case, record shows that an Election Petition No.53 of 1982 was instituted by Randu against Jeevad and others before Election Tribunal/Presiding Officer under U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947"). Summons were issued. Neki Ram, Revisionist who was Peon in the office of Prescribed Authority/Election Tribunal was deputed duty of serving summons upon defendants/respondents in the aforesaid Election Petition.
10. As per Section 12-C of Act, 1947 read with Rule 24 of U.P. Panchayat Raj Rules, 1947 "hereinafter referred to as "Rules, 1947"), Sub-Division Officer is Prescribed Authority before whom election petition can be presented and he constitute Election Tribunal. Appointment of a Class IV employee in the office of Sub-Divisional Officer is governed by recruitment, appointment and condition of service of Class IV employees i.e. Group 'D' Employees Service Rules, 1985 (hereinafter referred to as "Rules, 1985"), which is a Rules framed under Proviso to Article 309 of Constitution of India. Appointing Authority of a Class IV employee in district level offices and offices subordinate thereto is a District Level Officer.
11. It was alleged that Randu, accused, in collusion with other co-accused got an endorsement made by Revisionist on the summons that copy of summons alongwith Election Petition (plaint) has been served upon Jeevad. Actual endorsement made, reads as under :
^^Jheku th ,d fdrk leu e; vthZ nkos ds tho.k dks ns fn;k x;k^^ "Sir, one summon alongwith plaint was handed over to Jeevad." (English Translation by Court)
12. Jeevad was illiterate. His signatures were forged on the summons. The said summons was submitted in Election Tribunal. For this forgery, Revisionist and others were tried in Case No.502 of 2002 under Sections 466, 471, 120B IPC. Trial Court found that Revisionist has made forgery in respect of service of summons upon Jeevad and aforesaid forged document was submitted in Election Tribunal for further proceedings of Election Petition. Court, therefore, found that it was a 'forged' document purported to be made by a 'public servant' in official capacity. Aforesaid document amounts to a forged certificate of service, hence Section 466 IPC is attracted. It cannot be said that Section 466 IPC is applicable only to a document of a Court or document or proceeding of a Court but it includes within its ambit the documents or certificate purporting to be made by a 'public servant' in his official capacity. This otherwise submission advanced by Sri Sahai is rejected.
13. Now I come to argument relating to sanction. In order to attract Section 195 Cr.P.C., it has to be seen whether 'Election Tribunal' can be said to be 'Court' or not. Sub-section (3) of Section 195 Cr.P.C. clearly excludes 'Election Tribunal' from being treated as a 'Court'. Section 195(3) Cr.P.C. reads as under :-
"In Clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section." (emphasis added)
14. Section 195 Cr.P.C. will be attracted only when an Election Tribunal can be said to be a 'Court' within the meaning of Section 195(3). It could not be disputed by learned counsel for Revisionist that 'Election Tribunal' is not a Civil, Revenue or Criminal Court. He, however, submitted that it include 'Tribunal' within its ambit. But I find that Tribunals, included within term 'Court' defined under Section 195(3) Cr.P.C., are of restricted nature namely such 'Tribunal' must have been constituted by or under a Central, Provincial or State Act and declared by such Act to be a 'Court' for the purpose of Section 195 Cr.P.C.
15. It is not shown that Prescribed Authority/'Election Tribunal' has been so declared under the provisions of Act, 1947 to constitute a 'Court' for the purpose of Section 195 Cr.P.C. Distinction between 'Court' and 'Tribunal' has been considered by a seven Judges judgment in L. Chandra Kumar Vs. Union of India, AIR 1997 SC 1125.
16. In common parlance, it cannot be doubted that 'Election Tribunal' is a Tribunal constituted by a Provincial Act i.e. Act, 1947 but in absence of any declaration made by said Act to treat 'Election Tribunal' as a Court, in my view, Section 195 Cr.P.C. is not attracted.
17. Thus argument advanced with reference to Section 195 Cr.P.C. i.e. first issue is answered against revisionist.
18. Now coming to issue of want of sanction under Section 197 (1) Cr.P.C., here also I find that it has no application in the case in hand. Section 197 Cr.P.C. reads as under :
"197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression" Central Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
(3-A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
19. It is admitted that Sub-Section (2) has no application herein. Thus, I confined my scrutiny to Section 197(1) only. Essential conditions to be satisfied for attracting Section 197(1) Cr.P.C, are -
(i) Offence mentioned therein is committed by public servant, Judge or Magistrate;
(ii) The public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government as the case may be.
(iii) The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act.
(iv) If in doing his official duty, he acted in excess of his duty, but there is reasonable connection between the act and the performance of the official duty, the excess will not be sufficient ground to deprive the public servant of protection.
(v) The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in discharge of his official capacity.
(vi) It must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty.
(vii) The act can be performed in discharge of his official duty as well as in dereliction thereof.
20. Thus, the first condition to apply while attracting Section 197 Cr.P.C. is that not only person concerned must be a 'public servant' but also he should be such a public servant who can be removed only with sanction of Central Government or State Government and not otherwise.
21. In the present case, Revisionist is a Class IV employee. It could not be shown by learned counsel for Revisionist that Class IV employee in State Government service is liable to be removed only with the sanction of State Government. On the contrary, I find that statutory rules have been framed in respect of Class IV employees working in various departments and district level. Authority competent to appoint and remove Class IV employees in Districts are District Level Officers.
22. Therefore, the very first condition that in order to attract Section 197(1), public servant must be such whose removal is possible only with sanction of State Government is not attracted. Revisionist does not come within the category of aforesaid 'public servant'. Hence, Section 197(1) Cr.P.C. is not attracted at all.
23. In order to attract provision relating to sanction, Supreme Court has considered the matter at length in Devinder Singh and others vs. State of Punjab through CBI (2016) 12 SCC 87 and has culled out certain principles as under :
"I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 Code of Criminal Procedure has to be construed narrowly and in a restricted manner.
III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection Under Section 197 Code of Criminal Procedure There cannot be a universal Rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.
IV. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary Under Section 197 Code of Criminal Procedure, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 Code of Criminal Procedure would apply.
V. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
VI. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.
VII. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
VIII. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.
IX. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial. "
24. Applying above principles, when I examined the facts of this case, it cannot be doubted that official duty of Revisionist was to serve summon upon parties to whom summons were issued. It was not at all his duty to make a false endorsement on the document regarding service and also forged signature of addressee. The nature of allegation and charge found proved against revisionist does not come within the official duty of Revisionist and in this regard, I find no manner of doubt that Section 197 is not attracted. Therefore, in respect of issue no.2 also I find no force in the submission.
25. However, whether, as a matter of fact, act of accused-Revisionist can be said to be in discharge of official duties or not require evidence. Therefore, I am not expressing any final opinion on this aspect. Even otherwise, this aspect has a little relevance in the present case for the reason that accused-revisionist having not satisfied the category of 'public servant' on which Section 197(1) Cr.P.C. is applicable therefore, requirement of sanction in the case of accused-Revisionist is an imaginary issue. I, therefore, reject the submission advanced otherwise and answer issue-2 against Revisionist.
26. No other argument has been advanced.
27. Dismissed.
28. Interim order, if any, stands vacated.
Order Date :- 22.8.2019 KA