Bombay High Court
Swapna Patker vs The State Of Maharashtra And Anr on 27 July, 2021
Bench: S. S. Shinde, N. J. Jamadar
6-CRIWP2281-2021.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 2281 OF 2021
Dr. Swapna Patker ...Petitioner
Versus
The State of Maharashtra & ors. ...Respondents
Ms. Abha Singh, i/b Isha Singh, for the Petitioner.
Mrs. A. S. Pai, APP for the State/Respondent.
Mr. Roshan Tanna, for Respondent no.5.
Mr. Prasad Rao, for Respondent no.6.
CORAM: S. S. SHINDE &
N. J. JAMADAR, JJ
DATED: 27th JULY, 2021
(Through V.C.)
PC:-
1. This petition under Article 226 of the Constitution of India
is fled to quash and set aside the First Inforaation Report
("FIR") bearing CR No.336 of 2021, registered at Bandra Police
Station to the extent of the offences punishable under Sections
420, 467 and 468 of the Indian Penal Code ("the Penal Code").
2. The petitioner has prayed for an interia relief in the
nature of releasing her on bail till the disposal of this petition.
3. The petition arises in the backdrop of the following facts:
(a) Sat. Gurdeep Kaur Harindar Singh - respondent
no.5, the frst inforaant, claiaed to have received a sealed
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envelope containing certain docuaents including the Ph.D.
Degree Certifcate of the petitoner purportedly issued by
Chatrapati Shahuji Maharaj University, Kanpur, on 31st
Deceaber, 2009 and the profle of the petitioner which, inter
alia, indicated that the petitioner claiaed to have acquired the
qualifcation of Ph.D. (Clinical Psychology), BHMS, Fellowship in
Neurological Rehabilitation, Nuerobiology and Behaviour, MBA-
HRM and Services. The frst inforaant claiaed to have
entertained suspicion as there were apparent graaaatical and
typographical errors in the Ph.D. degree certifcate. Therefore,
the petitioner approached the police.
(b) It is the claia of the investigating agency that after
the aforesaid docuaents were so found, the police had
coaaunication with the coapetent authorities of Chatrapati
Shahuji Maharaj University, Kanpur. On 25th May, 2021, a
coaaunication was received froa the Controller of
Exaainations, Chatrapati Shahuji Maharaj University, Kanpur,
to the effect that the Ph.D. certifcate bearing Serial No.289929,
dated 31st Deceaber, 2009, was not genuine. Thereupon, the
frst inforaant lodged FIR on 26th May, 2021. It was alleged,
inter alia, that the petitioner practiced as a Clinical Psychologist
at Lilavati Hospital on the strength of the said forged and
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fabricated Ph.D. certifcate. The petitioner has thus deceived
the Hospital as well as the aeabers of the public by
fraudulently proclaiaing herself to be a qualifed Clinical
Psychologist.
(c) The petitioner claias that instant prosecution was
initiated against the petitioner as she aade grievances against
the authorities especially, the higher police offcers, in
connection with the investigation in the FIRs lodged by her. She
was constrained to institute Writ Petition Nos.338 of 2021, 488
of 2021 and 489 of 2021, wherein she has prayed for the grant
of protection. By way of a counter-blast, the instant FIR was
lodged aala fde. Even if the allegations in the FIR are taken at
their face value and in their entirety, no offence punishable
under Section 467 of the Penal Code can be said to have been
priaa facie aade out. The petitioner is a single aother of a
ainor son. Her aother, who is a senior citizen, is dependent
on her. In the aforesaid circuastances, the petitioner has been
allegedly deprived of her personal liberty. Hence this petition.
4. The petitioner caae to be arrested on 8 th June, 2021. Her
prayer for bail has been rejected by the learned Sessions Judge.
Ms. Abha Singh aakes a stateaent that the petitioner has not
preferred any bail application thereafter and no application for
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bail is pending before any Court.
5. We have heard Ms. Abha Singh, the learned Counsel for
the petitioner, Mrs. Pai, the learned PP for the
State/Respondent, Mr. Tanna, the learned Counsel for
respondent no.5 - the frst inforaant and Mr. Rao, the learned
Counsel for respondent no.6. We have also perused the report
tendered for perusal by the investigating agency indicating the
progress in the investigation.
6. At this stage, we propose to consider the prayer for release
on bail during the pendency of this petition.
7. In the context of the prayer for interia relief, Ms. Abha
Singh, would urge that at the highest allegations against the
petitioner are that the petitioner had used a Ph.D. degree
certifcate which is allegedly found to be not genuine. Even if
the prosecution case is taken at par, there is no aaterial to
indicate that it was the petitioner, who has forged the said
degree certifcate, auch less, to indicate that the said Ph.D.
degree certifcate constitutes a valuable security or a docuaent
which falls within the aabit of Section 467 of the Penal Code,
urged Mrs. Abha Sing. In this view of the aatter, according to
Ms. Abha Singh, the offence under Section 467 of the Penal
Code is not at all attracted.
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8. To lend support to this subaission, Ms. Abha Singh
placed a strong reliance on the judgaents of the Supreae Court
in the cases of Shriniwas Pandit Dharaadhikari vs. State of
Maharashtra,1 State of U.P. vs. Ranjit Singh,2 Md. Ibrahia and
others vs. State of Bihar & others3 and the recent judgaent of
the Supreae Court in the case of Sheila Sebastian vs. R.
Jawaharaj & Anr. Etc.4 The purport of the aforesaid judgaents,
according to Mrs. Abha Singh, is that there aust be evidence to
indicate that it was the accused who had forged the docuaent,
and the docuaent is of the type, described in Section 467 of the
Penal Code, to aake out an offence punishable thereunder.
9. In opposition to this Mrs. Pai, the learned PP, urged with a
degree of veheaence that the investigating agency has collected
adequate aaterial to deaonstrate, at this stage, that the Ph.D.
degree certifcate is forged. In addition to the said degree
certifcate, the investigation further revealed that the petitioner
had unjustifably claiaed to have acquired aany a
qualifcations and relied upon aany untrue certifcates/
testiaonials, in respect of which investigation is still underway.
In the circuastances, according to Mrs. Pai, it cannot be said
1 (1980) 4 SCC 551.
2 (1999) 2 SCC 617.
3 2009 (3) ACR 3072 (SC).
4 Criainal Appeal No.359-260 of 2010.
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that there is no aaterial to aake out a priaa facie offence
against the petitioner. As the investigation is at the nascent
stage, this Court would not be justifed in delving into the issue
of quashaent even for the liaited extent of the offence
punishable under Section 467 of the Penal Code, subaitted
Mrs. Pai.
10. Mr. Tanna, the learned Counsel for respondent no.5 - the
frst inforaant, joined issue by canvassing a subaission that
the judgaents which have been relied upon by the petitioner are
of no assistance, especially, at this stage, as those judgaents
were rendered post conclusion of the trial. Indisputably, the
petitioner has used the Ph.D. degree certifcate to practice as a
Clinical Psychologist. This fact is required to be appreciated in
the context of the injury which the conduct of the petitioner
aust have caused to the public in general, subaitted
Mr. Tanna.
11. We have given careful consideration to the rival
subaissions. To start with, it is iaperative to note that the
genesis of the prosecution is in a chance discovery of the copies
of the docuaents which were allegedly delivered at the residence
of respondent no.5, the frst inforaant. The latter claiaed to
have entertained suspicion and approached the police. It is true
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that, anybody can set the criainal law in aotion. However, the
eleaent of inquisitiveness which the frst inforaant exhibited
aay warrant consideration.
12. The thrust of the subaission on behalf of the petitioner is
that even if the prosecution case is considered, as it stands, the
aggravated offence punishable under Section 467 of the Penal
Code cannot be said to have been aade out. Section 467 of the
Penal Code reads as under;
"467. Forgery of valuable security, will, etc.--Whoever forges
a docuaent which purports to be a valuable security or a
will, or an authority to adopt a son, or which purports to give
authority to any person to aake or transfer any valuable
security, or to receive the principal, interest or dividends
thereon, or to receive or deliver any aoney, aovable property,
or valuable security, or any docuaent purporting to be an
acquittance or receipt acknowledging the payaent of aoney,
or an acquittance or receipt for the delivery of any aovable
property or valuable security, shall be punished with
[iaprisonaent for life], or with iaprisonaent of either
description for a tera which aay extend to ten years, and
shall also be liable to fne."
13. The phraseology of Section 467 spells out the following
ingredients of the offence:
(i) The docuaent in question is forged.
(ii) It is the accused who forged it.
(iii) The docuaent is one of the kinds enuaerated in
the aforesaid Section, naaely, valuable security or
a will or an authority of the specifed kind or any
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docuaent purporting to be acquittance or receipt
acknowledging the payaent of aoney, or an
acquitance or receipt for the delivery of any
aovable property or valuable security.
14. Section 30 of the Penal Code defnes a valuable security as
under:
"30. "Valuable security".--The words "valuable security"
denote a docuaent which is, or purports to be, a docuaent
whereby any legal right is created, extended, transferred,
restricted, extinguished or released, or where by any person
acknowledges that he lies under legal liability, or has not a
certain legal right."
15. The question which crops up for consideration is whether
the Ph.D. degree certifcate allegedly forged and used by the
petitioner, priaa facie, falls within the dragnet of Section 467 of
the Penal Code. In this context, the reliance placed on behalf of
the petitioner, on the judgaent of the Supreae Court in the
case of Shriniwas Pandit Dharaadhikari (supra) appears well
founded. In the said case, the petitioners therein had forged
certifcates to get adaission in the college affliated to Poona
University. The Supreae Court observed that the certifcates
testifying the educational qualifcation, could not be described
as valuable security in teras of the defnition under Section 30
of the Penal Code.
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16. Though a nuaber of judgaents were cited on behalf of the
petitioner, we deea it appropriate to refer two of the judgaents
of the Supreae Court. First, in the case of Md. Ibrahia (supra),
wherein, after analyzing the provisions contained in Section 464
of the Penal Code, the Supreae Court enunciated that, "the
condition precedent for an offence punishable under Sections
467 and 471 is forgery. The condition precedent for forgery is
aaking a false docuaent (or false electronic record or part
thereof)."
17. Following the aforesaid pronounceaent, in the recent
decision in the case of Sheila Sebastian (supra), the Supreae
Court observed as under:
"25. Keeping in view the strict interpretation of penal
statute i.e. referring to rule of interpretation wherein
natural inferences are preferred, we observed that a charge
of forgery cannot be iaposed on a person who is not the
aaker of the saae. As held in plethora of cases, aaking of a
docuaent is different than causing it to be aade. As
Explanation to Section 464 further clarifes that, for
constituting an offence under Section 464 it is iaperative
that a false docuaent is aade and the accused person is
the aaker of the saae, otherwise the accused person is not
liable for the offence of forgery.
26. The defnition of false docuaent is the part of the
defnition of "forgery". Both aust be read together. 'Forgery'r
and 'Fraud'r are essentially aattes of evidence which could
be proves as a fact by direct evidence or by inference drawn
froa proved facts. ....."
18. In the light of the aforesaid exposition of the legal position
reverting to the facts of the case, priaa facie, the Ph.D.
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certifcate, does not fall within the aabit of the defnition of the
tera of valuable security. The subaission on behalf of the
prosecution that the intrinsic evidence of the Ph.D. certifcate
betrays the fact that the certifcate is forged, if viewed in the
backdrop of the patent typographical and graaaatical aistake,
aay carry soae substance. However, at this stage, at the aost
the charge for the offence punishable under Section 465 can be
said to have been priaa facie aade out. The further issue as to
whether an offence punishable under Section 467 of the Penal
Code is aade out is a aatter which warrants consideration.
Since the investigation is in progress, we do not propose to delve
deep into this aspect of the aatter. It would be suffce to
observe that the question of coaplicity of the petitioner for the
offence punishable under Section 467 of the Penal Code would
warrant consideration and exaaination.
19. At this stage, it is necessary to note that Ms. Abha Singh,
the learned Counsel for the petitioner, placed reliance on the
judgaent of the Supreae Court in the case of Arnab Goswaai
vs. State of Maharashtra5 for the release on interia bail during
the pendency of the petition.
20. The petitioner was arrested on 8th June, 2021. Suffcient
52021 (2) SCC 427.
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tiae has elapsed since the date of the arrest of the petitioner so
as to facilitate effective investigation. The petitioner is a woaan.
In the exigency of the situation on account of Covid-19
Pandeaic, the aspect of continued detention of the petitioner
also aerits consideration. The petitioner claiaed that a ainor
son and an old aother are dependent on her.
21. Since we are of the view that the offence punishable under
Section 467, which entails iaprisonaent for life, is not priaa
facie aade out, in the peculiar facts of the case, the aforesaid
factors persuade us to grant the relief of bail to the petitioner
pending consideration of this petition for quashaent of the
charge for the offences punishable under Sections 467 and 468
of the Penal Code.
22. We record that Ms. Abha Singh, the learned Counsel for
the petitioner, has assured the Court that the petitioner would
render full cooperation in the investigation, which is underway.
Ms. Abha Singh aakes a further stateaent that till the decision
of this petition, the petitioner will not use the Ph.D. degree
certifcate for any purpose whatsoever and shall not practice as
a Clinical Psychologist or as the Counsellor. We record the
aforesaid stateaents.
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23. Hence, the following order:
:ORDER:
(i) During the pendency of this petition, the petitioner, Dr. Swapna Patker, be released on bail on furnishing a PR Bond in the sua of Rs.25,000/-, with one or two sureties in the like aaount to the satisfaction of the learned Magistrate.
(ii) The petitioner shall render necessary cooperation during the course of investigation and shall attend Bandra Police Station on every Monday froa 10.00 aa. to 12.00 noon, for the period of one aonth froa the date of her release and thereafter attend on the 1st Monday of every aonth froa 10.00 aa. to 12.00 noon and as and when directed by the Investigating Offcer, for the purpose of investigation, till the fling of charge-sheet.
(iii) The petitioner shall not taaper with the prosecution evidence and/or give threats or induceaent to any of the prosecution witnesses.
(iv) The petitioner shall surrender her passport before the Investigating Offcer.
(v) The petitioner shall not leave India without prior peraission of the jurisdictional Magistrate.
(vi) In conforaity with the stateaent of the learned Counsel for the petitioner, as recorded by this Court, the petitioner shall not use the Ph.D. 12/13 ::: Uploaded on - 27/07/2021 ::: Downloaded on - 28/07/2021 05:41:14 ::: 6-CRIWP2281-2021.DOC certifcate and practice as a Clinical Psychologist or Counsellor till further orders.
24. Post the petition on 6th Septeaber, 2021.
25. In the aeanwhile, the respondents are at liberty to fle an affdavit-in-reply and serve copies thereof on the petitioner.
26. The pendency of this petition shall not be construed as an iapediaent for further investigation.
[N. J. JAMADAR, J.] [S. S. SHINDE, J.] 13/13 ::: Uploaded on - 27/07/2021 ::: Downloaded on - 28/07/2021 05:41:14 :::