Gujarat High Court
Jayrajsinh Madhubha Gadhvi vs State Of Gujarat on 28 July, 2023
NEUTRAL CITATION
R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8718 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAYRAJSINH MADHUBHA GADHVI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. BHADRISH S RAJU(6676) for the Applicant(s) No. 1
MR. H.K. PATEL, LD. ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 28/07/2023
CAV JUDGMENT
1. By way of this application, the applicant seeks to invoke the inherent powers of this Court praying for quashing and setting aside the Criminal Complaint registered against him Page 1 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined before the Athwa Lines Police Station being I-C.R. No.104 of 2014 for the offence punishable under Sections 465, 468, 420 and 471 of the Indian Penal Code.
2. The applicant herein, namely, Jayrajsinh Madhubha Gadhvi is the original accused and the respondent No.2- Bhagwatsinh K. Vanar is the original complainant and for the sake of convenience and brevity, they shall hereinafter be referred to as the accused and the original complainant respectively. The Criminal Procedure Code, 1973 shall hereinafter be referred to as the 'Code' and the Indian Penal Code shall hereinafter be referred to as the 'IPC'.
3. The facts giving rise to this application may be summarized as under;
3.1 The applicant was serving in the Police Department since 1993 and has been awarded more than 150 awards/good service ticket during his entire tenure.
3.2 Somewhere in the year 2009, an advertisement was published by the Police Department for recruitment to the post of Police Sub-Inspector (Unarmed), Class-III.
3.3 On 20.05.2009, the applicant had applied for the said post along with the necessary documents. To meet with the criteria of educational qualification as mentioned in the advertisement, the applicant had produced New S.S.C, i.e, 10 th Standard certificate as also the certificate of Bachelor of Preparatory Program ( hereinafter referred to as "the BPP") in column No.12 of the said application.
Page 2 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined 3.4 On 21.06.2012, the State Government, issued a notification, inter alia, amending the Police Sub-Inspector (Unarmed) Class-III Recruitment Rules, 2008 by inserting Rule 2(2), Clause (a)(ii) which provides that even the constables who have worked for a period of 15 years would also be eligible to apply for the post of PSI.
3.5 Thereafter, the applicant appeared in the written examination, however, due to some unavoidable circumstances, he could not appear in the physical examination.
3.6 Later on, at a belated stage, the Department rejected the candidature of the petitioner on the ground that the certificate of BPP produced by the applicant is not equivalent to the 12th standard examination and, on the basis of the same, FIR also came to be registered against the applicant for the offences as mentioned therein. Hence, the present petition is filed by the applicant, seeking quashing of the FIR.
4. Learned advocate Mr. Bhadrish Raju appearing on behalf of the applicant-accused has vociferously submitted that the present complaint is nothing but an abuse of process of law and, therefore, is required to be quashed and set aside. He has submitted that the present complaint is registered with an ulterior and oblique motive by falsely implicating the present applicant-accused and, therefore, same deserves to be quashed and set aside. Learned advocate Mr. Raju has further submitted that if the contents of the complaint are accepted as true and genuine without admitting it, even though the basic Page 3 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined ingredients to constitute the offence under the provisions as narrated in the complaint are missing and if the contents of the complaint are to be accepted as true, even though they do not constitute any offence much less the offence punishable under Sections 465, 468, 420 and 471 of the IPC. Learned advocate Mr. Raju has submitted that if the allegations levelled in the complaint are to be accepted as true, the same do not constitute the offence of forgery punishable under Section 468 of the IPC. Same way, offence of cheating punishable under Section 420 of the IPC has also not been prima facie made out and, therefore, on the strength of allegations levelled in the complaint, the same itself would not be able to establish the basic ingredients of the sections, for which, charges are alleged to have been levelled and, therefore, the impugned first information report is required to be quashed and set aside.
5. Learned advocate Mr. Raju has also submitted that in short the allegations levelled in the complaint are unfounded and even if they are taken to be true at its face value, then also, no offence is made out and, therefore, the first information report is required to be quashed and set aside. The allegations levelled against the accused in the first information report are so absurd and inherently improbable, on the basis of which, no prudent person can ever reach to the conclusion that there is sufficient material and ground to proceed against the accused. Learned advocate Mr. Raju has submitted that, in fact, as per the complaint, the so called incident is occurred in the year 2009 and the complaint came to be registered on Page 4 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined 08.05.2014. It is the duty of the complainant to explain the delay at the time of registration of the complaint and nowhere in the body of the complaint, delay is explained. As per the settled proposition of law, if there is deliberate delay on the part of the complainant in registering the complaint, in that event, it would become fatal for the prosecution and some plausible reasons are required to be assigned at the time of registration of the complaint that why such a delay has occurred in registering the complaint. Nowhere in the entire body of the complaint, the complainant has bothered to give any explanation with regard to such a long delay in registering the complaint.
6. Learned advocate Mr. Raju has submitted that it is clearly stated in the complaint that one anonymous complaint was received by the Department, and on the basis of the said complaint, inquiry was ensued and ultimately after the end of day, after scrutinizing and verifying all the papers, the Department came to the conclusion that offence was made out and, accordingly, complaint came to be registered. The Administrative Department of the Government of Gujarat, Gandhinagar had passed a resolution on 05.09.2005 specifically directing that no such anonymous application should be made basis for lodging the first information report. Therefore, it seems that the impugned first information report is in breach of the aforesaid resolution and is filed just with a view to wreck vengeance against the applicant. Learned advocate Mr. Raju has submitted that the applicant was appointed as a police constable in the year 1993 and in the Page 5 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined year 2009, an advertisement was published by the Department for recruitment to the post of PSI. However, at that point of time, as the applicant was not fulfilling the requisite criteria as mentioned in the advertisement, the applicant along with other constables approached this High Court by way of filing special civil application being Special Civil Application No.4998 of 2009, inter alia, seeking direction to the police department to give relaxation in certain criteria and also to accept his application for recruitment to the post of PSI. It was the specific say of the petitioner in that petition that rules of recruitment are arbitrary and prepared in a discriminatory manner, due to which, despite the fact that they are possessing all the requisite criteria, did not allow to appear in the examination to compete with the other candidates. Their candidature has been rejected mainly on the ground that they have not completed three years continuous service as the head constables. It was also, inter alia, submitted that promotion to the post of head constable is varies from district to district as far as time factor is concerned which ultimately resulted into gross discrimination in the equal cadre working in different districts. On 21.06.2012, the State Government had issued notification, amending the terms and conditions of the rules of the recruitment in the cadre of Police Sub-Inspector (Unarmed) Class-III by providing, inter alia, in Rule 2(2), clause
(a)(ii) that the constables who have worked for a period of 15 years would also be eligible for applying to the post of PSI. In the said notification, it is clarified that all those candidates who appeared in the Special Competitive Examination for recruitment to the post of PSI held in the year 2009 shall also Page 6 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined be considered eligible.
7. Learned advocate Mr. Raju has further submitted that during the pendency of the aforesaid petition, the applicant was permitted to sit in the written examination, however, he could not appear in the physical test as he was injured on duty while trying to apprehend the accused. It is submitted that at the time of filling up the form, applicant has enclosed certain documents relating to his education qualification. At that time, applicant was possessing the qualification of New SSC, i.e., standard 10th and also cleared the Bachelor of Preparatory Program (BPP) from Dr. Babasaheb Ambedkar Open University. Both the aforesaid two documents were enclosed along with the form at the time of applying for the said post. Learned advocate Mr. Raju has also submitted that as far as BPP certificate is concerned, the examination of BPP is equivalent to stands 12th examination and after clearing the BPP, the candidate can get admission in the F.Y.B.A in the Dr. Babasaheb Ambedkar Open University. Learned advocate Mr. Raju has submitted that, in fact, at the time of filling up the form, the applicant had also annexed the copy of the said BPP certificate which is part and parcel of the record. Initially the applicant-accused had appeared for BPP examination in the year 2008, but he could not complete the same and, therefore, it is mentioned in the document itself as 'NC' which means 'Not Completed'. The Office of the concerned College also told the applicant that only when the candidate fails, then the mark-sheet is being given and that is the policy of Dr. Babasaheb Ambedkar Open University. The applicant, once Page 7 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined again appeared in the BPP examination in November- December, 2008 and vide offer letter dated 15.06.2009, he was intimated that he has cleared the BPP examination, a copy of which is also produced along with the papers.
8. Learned advocate Mr. Raju has further submitted that Rule 2 Clause (e) of the Rules for Recruitment to the post of Police Sub-Inspector (Unarmed) Class-III, inter alia, provides as follows;
"2(e):- Have passed the Higher Secondary School Certificate Examination (Std. XII, 10+2 pattern) or, Secondary School Certificate Examination (Std. XI Old pattern) conducted by the States Secondary and Higher Secondary Examination Board or possesses an equivalent qualification recognised as such by the Government."
9. The said Rule 2(e) has been interpreted by the Home Department vide its letter dated 05.11.2008. The copy of the said resolution is also part of the record, and as per the said interpretation of the State Government, if a candidate has passed the New SSC, i.e, 10th standard, he would be qualified since New SCC, i.e, 10th standard is being treated as equivalent to old SSC, i.e., 11th standard which is recommended under the rules. Learned advocate Mr. Raju has also submitted that, in fact, on the strength of one anonymous application sent by one person who might have some grievance against the applicant, inquiry has been started by the concerned office. The concerned Investigating Officer has scrutinized and verified all the documents. Not only that, they have recorded the statement of the officers who are directly or indirectly connected with the day to day affair of the administration of Page 8 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined the Dr. Babasaheb Ambedkar Open University. The statement recorded by the Inquiry Officer is placed on record along with the reply and, thereafter, on the strength of the said material, complaint was registered against the applicant. Learned advocate Mr. Raju has further submitted that the statement of the author of the documents was also recorded by the concerned officer and he has in a very categorically terms stated that the said letter was issued by him, and as and when any student demands such kind of letter, they used to provide the same on their letterhead to the concerned student. The applicant herein had also approached them for issuance of the said letter and, accordingly, they had issued the said letter to the applicant after verifying the documents produced before them The said letter which was issued by the authorized person of the concerned Department also enclosed by the applicant along with the form. It is also an admitted position of fact that the applicant had cleared the S.S.C examination in the year 1987 and copy of the mark-sheet was also produced along with the form. So far as standard 12 th documents are concerned, the applicant has already cleared the standard 12 th Examination on 03.06.2013. Copy of the said certificate issued by the Gujarat Secondary & Higher Secondary Education Board, Gandhinagar is also produced on record. Learned advocate Mr. Raju has submitted that if any forgery is committed by the applicant, as alleged in the complaint, then the author of the document who had issued the said certificate also required to be arraigned as an accused. Admittedly, he has not been made an accused and on the contrary, he has been shown as a witness.
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10. Learned advocate Mr. Raju has further submitted that at the time of filling up the form, the applicant has mentioned that he has cleared the BPP examination and documents pertaining to the same were also produced along with the form. Learned advocate Mr. Raju has submitted that the result issued in the month of April, 2008 by Dr. Babasaheb Ambedkar Open University for BPP examination is part and parcel of the record, wherein it is clearly mentioned that result is 'NC", which means 'Not Completed'. Had there been intention on the part of the applicant to misrepresent the authority, in that event, he would have submitted the said documents along with the form. The conduct of the applicant itself shows that the action on the part of the applicant is bonafide one and on the strength of the material available on record, the person concerned who is authorized to scrutinize and verify the documents annexed along with the form, has to disqualify the candidature of the present applicant-accused. By no stretch of imagination, it can be said that the applicant-accused has committed forgery and cheating with the institution. Learned advocate Mr. Raju has read the provisions pertaining to cheating and forgery and submitted that not a single ingredient to constitute the offence under the said provisions are spelt out from the allegations levelled in the complaint and, therefore, the complaint is required to be quashed and set aside. Learned advocate Mr. Raju has further submitted that, in fact, the applicant had approached this Hon'ble Court by way of filing the special civil application, and this Court, initially at the time of admission, had granted permission to the applicant to appear in the examination. He appeared in the Page 10 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined examination, but his result was kept in the sealed cover and, thereafter, the said petition was dismissed. Therefore, he approached the Hon'ble Supreme Court by preferring Special Leave Petition and assailed the judgment and order passed by this Hon'ble High Court. The said SLP was withdrawn by the applicant with a specific direction to prefer a representation before the concerned authority. Accordingly, the applicant made a representation to the concerned authority, which was eventually considered by the Commissioner, Surat and, ultimately, he was promoted in the cadre of Police Sub- Inspector and since last more than 8 to 10 years, he is working as the Police Sub-Inspector. Learned advocate Mr. Raju has submitted that considering the above stated factual aspect, this is a fit case, in which, this Court can exercise its extraordinary jurisdiction by quashing and setting aside the complaint registered against the applicant.
11. Per contra, learned APP Mr. H.K. Patel appearing on behalf of the State has vociferously submitted that the applicant is a police officer and working in the police department, and as a member of disciplinary force, one can expect that he would follow the principle of disciplinary ethics and, more particularly, at the time of submitting the documents to the concerned department for any examination held by the government machinery and he has to be more careful while providing any information. Learned APP has further submitted that one anonymous application was received by the Office of the Police Commissioner, Surat City, wherein serious allegations were levelled against the applicant Page 11 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined and, therefore, discreet inquiry was started and at the end of the inquiry, it has come to the notice of the department that false and fabricated documents have been produced by the applicant at the time of submitting the form. Hence, present complaint has been registered. Learned APP Mr. Patel has also submitted that petitioner was working in the police department since 01.11.1993 and at the time of filling up the form, he had mentioned that he was possessing the qualification of SSC pass and cleared the BPP examination from Dr. Babasaheb Ambedkar Open University in the year 2008. Copy of the SSC result and the BPP certificate which is stated to be equivalent to HSC was annexed with the form. The documents which were produced by the applicant clearly shows that present applicant had not completed the BPP course even though he has tried to create an impression in the mind of the authority that he is possessing the degree equivalent to 12 th standard (HSC). Therefore, inquiry was ensued and during the course of inquiry, it was found out that BPP is not equivalent to HSC (12th standard), but the said program is arranged for the uneducated people who are capable and interested in further study from home. Therefore, Dr. Babasaheb Ambedkar Open University has arranged this program and no certificate or letter would be provided by the University on completion of BPP Course. The officer of the college has given his statement before the Investigating Officer stating that completion of BPP course cannot be used as a tool to meet with any criteria for any government service or government induction program. The said witness has very categorically stated that the college is not issuing any such certificate to the student, but a letter Page 12 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined purportedly written by him under the letterhead of college was prepared and issued by him upon the request made by the applicant. He has very categorically opined that there was false notion running in the mind of people that passing of BPP is equivalent to passing of standard 12 th examination. One can join the graduation course after passing the BPP, but in fact, the BPP program cannot be considered equivalent to 12 th standard. The Investigating Officer has also recorded the statement of administrator of Dr. Babasaheb Ambedkar Open University, namely Ravi Mahendra Gaur and the said witness has also specifically stated that the person who has cleared the BPP examination cannot be considered as equivalent to standard 12th examination. The applicant did not remain present in the examination and, therefore, he has not cleared the BPP exam and preliminary education by way of BPP for graduation is not equivalent to 10+2 or any other examination. However, those candidates who do not possess the basic eligibility criteria for entrance in the regular graduation degree in the University, BPP is an internal procedure for preparing students for further study. It is true that applicant had taken admission in the University but not completed the course. As BPP course is not equivalent to standard 12 th and the said fact is very categorically described by the University and well within the knowledge of all the students of the university, despite the said fact, the applicant has annexed not completed BPP certificate along with the form by stating that he has cleared the examination equivalent to standard 12 th examination. The said action, conduct and behavior of the applicant goes on to show that with a sole intention to cheat Page 13 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined the Institution, and to throw send in the eye of the institution, with mala fide intention, documents were annexed along with the application with a sole intention to secure his admission in a recruitment process and that is why after completion of through inquiry, the Office of Police Commissioner thought fit to register the complaint against him and, therefore, the said complaint cannot be thrown out at the threshold. On the contrary, the police machinery may be given free hand by continuing with the investigation. If, at all, mens rea on the part of the applicant would not be found out, then summary report will be submitted before the competent court who has jurisdiction to try the case and which does not make any difference to the future prospect of the applicant.
12. Learned APP Mr. Patel has further submitted that at the time of recruitment, a letter in the form of terms and conditions was issued by the Home Department on 05.11.2008 wherein it was very categorically stated that the educational qualification for unarmed PSI (Mode II), as per which, only those candidates who has cleared the HSC (standard 12 th 10+2+3) pattern or old SSC (Class 11+4 pattern) or its equivalent or if the candidates has appeared for old SSC (prior to 1976) and is failed in it, and then has appeared for 10+2+3 pattern which came into force in 1976 or head constable/ASI who have failed old SSC and are considered as eligible to appear for new SSC and permitted to appear for unarmed PSI (Mode II) examination. As in the case on hand, the applicant has completed standard 10th exam in October 1987 as per new SSC regime (as per 10+2+3 pattern) and, therefore, the case Page 14 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined of the applicant would not fall within the criteria as laid down by the Home Department of Government of Gujarat in its letter dated 05.11.2008. Learned APP Mr. Patel has further submitted that one document is produced by the applicant which was purportedly written by the In-charge Director of Dr. Babasaheb Ambedkar Open University on the letterhead of the University issued on 01.07.2008. The contents of the said letter goes on to show that the person who has completed the BPP examination successfully, in that event, they are entitled to get admission in the first year of graduation and after completion of three years, they would be in a position to obtain the degree of graduation. The Inquiry Officer has specifically made inquiry about the authenticity of the said document, in which, as per the statement of one of the officers of the University recorded by the Inquiry Officer, it is found out that the said letter was not written by the University and, therefore, it can be safely said that with the sole intention to mislead the authority, false and fabricated documents are produced as if the said documents are reliable and genuine one. Therefore, this is a fit case wherein Investigating Machinery may be given free hand to carry out further investigation in proper direction to collect and submit the documents before the competent authority. Thus, the learned APP prays that the application may be rejected.
13. Having given my anxious thoughts and consideration to the respective contentions of the rival parties, I am of the considered opinion that application preferred by the applicant- accused, praying for quashing of the FIR merits consideration Page 15 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined for the reasons which I shall record hereinafter.
14. Before evaluating the contentions advanced on behalf of the parties, it will be useful to briefly notice the scope and ambit of the inherent powers of the High Court under Section 482 of the IPC. The section itself envisages three circumstances, under which, the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent an abuse of the process of court; and to otherwise secure the ends of justice. Nevertheless, it is neither possible nor discernible to lay down any inflexible rule which govern the exercise of inherent jurisdiction of the court. Undoubtedly, the power possessed by the High Court under the said provision is very wide, but is not unlimited. Therefore, it has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exits. It needs little emphasis that the inherent jurisdiction does not confer any arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce any justice.
15. In the case of R.P. Kumar vs. State of Punjab, reported in AIR 1960 SC 860, the Supreme Court had summarized some of the categories of cases where the inherent power under Section 482 of the Code could be exercised by the High Court to quash criminal proceedings against the accused. These are; (i) where it manifestly appear that there is a legal bar against the institution or continuance of the proceedings e.g. want of sanction; (ii) where allegations Page 16 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
16. In the case of Dinesh Dutt Joshi vs. State of Rajasthan, reported in (2001) 8 SCC 570, while dealing with the inherent powers of the High Court, the Supreme Court has observed thus;
" The principle embodied in Section is based upon the maxim: Quando lex aliquid alicuiconcedit, concedere videtur id quo res ipsa esse non potest i.e. when the law gives anything to anyone, it gives also all those things, without which the thing itself would be unavailable. Section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the Section. As Lacunae are sometimes found in procedureal law, the Section has been embodied to cover such Lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this Section are however required to be reserved, as far as possible, for extraordinary cases. The principle embodied in Section is based upon the maxim: Quando lex aliquid alicuiconcedit, concedere videtur id quo res ipsa esse non potest i.e. when the law gives anything to anyone, it gives also all those things, without which the thing itself would be unavailable. Section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the Section. As Lacunae are sometimes found in procedureal law, the Section has been embodied to cover such Lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this Section are however required to be reserved, as far as possible, Page 17 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined for extraordinary cases."
17. In the case of G. Sagar vs. State of U.P., reported in (2000) 2 SCC 636, the Supreme Court had opined as follows;
"Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction- under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
18. The Supreme Court in the case of Rishipal Singh vs. State of U.P., & Anr., (Criminal Appeal No.1300 of 2014 arising out of Special Leave Petition (CRL) No.2447 of 2013 dated 02.07.2014 has very succinctly discussed the position of law so far as quashing of the criminal proceedings is concerned. The Apex Court observed thus;
"10. Before we deal with the respective contentions ad- vanced on either side, we deem it appropriate to have thorough look at Section 482 Cr.P.C., which reads:
"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such or- ders as may be necessary to give effect to any orders of this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice".
A bare perusal of Section 482 Cr.P.C. makes it crystal clear that the object of exercise of power under this sec-
Page 18 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined tion is to prevent abuse of process of Court and to secure ends of justice. There are no hard and fast rules that can be laid down for the exercise of the extraordinary juris- diction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straight jacket formula nor defined parameters to enable a Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The Courts have to be very circumspect while exer- cising jurisdiction under Section 482 Cr.P.C.
11. This Court in Medchl Chemicals & Pharma (P) Ltd. v Biological E. Ltd and Others 2000 (3) SCC 269, has dis- cussed at length about the scope and ambit while exer- cising power under Section 482 Cr.P.C. and how cautious and careful the approach of the Courts should be. We deem it apt to extract the relevant portion from that judgement, which reads:
"Exercise of jurisdiction under inherent power as envis- aged in Section 482 of the Code to have the complaint or the charge sheet quashed is an exception rather than rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution with the lodgement of First Information Report. The ball is set to roll and thenceforth the law takes it's own course and the investigation ensures in ac- cordance with the provisions of law. The jurisdiction as such is rather limited and restricted and it's undue ex- pansion is neither practicable nor warranted. In the event, however, the Court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge sheet on the fact of it does not con- stitute or disclose any offence alleged, there ought not to be any hesitation to rise up to the expectation of the peo- ple and deal with the situations as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be con- tinued since the same is opposed to the concept of jus- tice, which is paramount".Page 19 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023
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12. This Court in plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the Courts under Section 482 Cr.P.C. In State of Haryana v. Bhajan Lal 1992 Supp(1) SCC 335, this Court has listed the categories of cases when the power under Section 482 can be exercised by the Court. These principles or the guidelines were reiterated by this Court in (1) Central Bureau of Investigation v. Duncans Agro Industries Ltd. 1996 (5) SCC 592; (2) Rajesh Bajaj v. State NCT of Delhi 1999 (3) SCC 259 and; (3) Zandu Pharmaceuticals Works Ltd. v. Mohd. Sharaful Haque & Anr (2005) 1 SCC
122. This Court in Zandu Pharmaceuticals Ltd., observed that:
"The power under Section 482 of the Code should be used sparingly and with to prevent abuse of process of Court, but not to stifle legitimate prosecution. There can be no two opinions on this, but if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of Court, the power under Sec- tion 482 of the Code must be exercised and proceedings must be quashed". Also see Om Prakash and Ors. V. State of Jharkhand 3012 (12) SCC 72.
What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The Courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of jus- tice, then the Court can exercise the power under Section 482 Cr.P.C. While exercising the power under the provi- sion, the Courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial Court and dwell into the disputed questions of fact."Page 20 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023
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19. The facts available on record is that the applicant is serving in the police department as a Head Constable. The respondent has published an advertisement for recruitment to the post of PSI by way of promotion As the applicant did not fulfill the prescribed criteria as mentioned in the recruitment rules, the applicant accused approached this Court by way of filing special civil application being Special Civil Application No.4998 of 2009, inter alia praying for a direction to the respondent to accept the application of the applicant for recruitment to the post of PSI (Unarmed) as the terms and conditions as mentioned in the rules are arbitrary and discriminatory in nature. On 20.05.2009, the applicant has forwarded the application form along with the details required. It is submitted by the learned advocate for the applicant that at the relevant point of time, the applicant was possessing the degree of new SSC, i.e, 10th standard and also the certificate of BPP cleared through Dr. Babasaheb Open University.
20. It is an undisputed fact that the applicant had enclosed the aforesaid two documents along with the form. However, no query was raised at the relevant point of time. Thereafter, after lapse of some period, all of a sudden, the concerned department found the candidature of the applicant-accused ineligible and on the basis of the same, rejected the application of the applicant. Thereafter, the applicant had filed the petition before this High Court, and during the pendency of the said petition, the petitioner was permitted to sit in the written examination, however, he could not appear in the Page 21 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined physical test. It is also an undisputed fact that the officer concerned who had issued the said certificate was not arraigned as an accused in the present proceedings.
21. The first question, therefore, falls for my consideration is, whether any case of the offence of forgery could be said to have been made out.
22. It is the case of the prosecution that on the strength of the anonymous application received by the concerned Department, inquiry was carried out. The statement of the authorized person also came to be recorded by the Inquiry Officer and, thereafter, reached to the conclusion that prima facie it seems that with a sole purpose to get promotion to the post of PSI, false and fabricated documents were produced by the applicant. I do not find any substance in the aforesaid contention canvassed by the complainant as if at all any offence of forgery is being committed by the applicant- accused, then the author of the said certificate has to be arraigned as an accused, which the prosecution has miserably failed to do so. Moreover, the entire prosecution came to be initiated against the applicant-accused only on the basis of the anonymous application received by the concerned Department. Therefore, I am of the view that no case of forgery worth the name is made out by the prosecution.
23. The Supreme Court has, in the case of Mohammed Ibrahim and others vs. State of Bihar and another, Page 22 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined reported in 2010 (1) GLH 184, very exhaustively explained as to what will constitute forgery. The ratio as propounded by the Supreme Court in the said case squarely applies in the case on hand. The relevant paragraphs are reproduced hereinbelow:
"10. Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that 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.
Section 470 defines a forged document as a false document made by forgery. The term "forgery" used in these two sections is defined in section 463. Whoever makes any false documents 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 express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
Section 464 defining "making a false document" is extracted below:
"464. Making a false document.--A person is said to make a false document or false electronic record---
First.--Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of Page 23 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1 - A man's signature of his own name may amount to forgery.
Explanation 2 - The making of a false document in the Page 24 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note: The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]."
The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
14. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3) The third is where a person dishonestly or fraudulently Page 25 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
15. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the Page 26 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted."
24. It is stated in the complaint itself that the certificate pertaining to standard 10th is genuine. The main controversy is entangled about the production of BPP certificate. Before registration of the complaint, statement of the clerk of Shri Haribapa Charitable Trust, Arts & Commerce College, namely, Amit K. Vyas was recorded. In his statement, he has very categorically stated that the said letter was issued by him on the letterhead of the Haribapa Charitable Trust, Art & Commerce College, Jasdan in his own handwriting and at the request of the applicant, the said letter was prepared and issued in favour of the applicant. He has also identified the rubber stamp, seal and his signature upon the said letter. In his statement, he has very categorically stated that the course of BPP would not equate with the standard 12th education. It is true that after clearing the BPP, one can study upto graduation through distance learning. The statement of Ravi Mahendra Gaur who is working as Deputy Academician in the Dr. Page 27 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023 NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined Babasaheb Ambedkar Open Uniiversity also came to be recorded and he has stated in his statement that BPP means Bachelor of Preparatory Program. The person who has not studied and does not have writing and reading skill, can get admission in the Babasaheb Ambedkar Open University in the BPP program course to improve his writing and reading skill and after clearing the BPP course in the same University, one can study upto graduation and the certificate obtained from the said University would never equate with standard 10th or 12th examination. By no stretch of imagination, it can be said that the person who has cleared the BPP examination has passed out the standard 12th examination. The said witness has very caterogically stated that after scrutinizing and verifying the record available on file, it is found out that the applicant-Jayrajsinh Gadhvi has not cleared BPP course from their University because as per the record he was absence in one exam and, therefore, could not clear the exam. On the strength of the aforesaid statement recorded by the concerned Inquiry Officer, complaint came to be registered.
25. Now at this juncture, the basic question that falls for my consideration is that whether the documents produced by the applicant at the time of filling up the form are forged one or not. The applicant has produced the copy of the said certificate along with the petition and submitted on oath that the said paper was supplied to the authority at the time of filling up the form. I have gone through the contents of the said certificate which prima facie shows that it is clearly stated in the certificate that result is 'NC', which means 'Not Completed'.
Page 28 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined Nowhere in the entire body of the said document, it is found out that any interpolation is being made and the certificate shows that the applicant has passed the examination. When any document is produced by any person before the authority specifically stating that he has cleared the examination, but in the operative part of the certificate it is found that the said person was absent in the examination and has not cleared the examination, in that event, what the authority can maximum do is to cancel the said form due to non-fulfillment of the requisite qualification and criteria of the recruitment rules. Mere production of the certificate stating that he has cleared the examination which, in fact, has not cleared by him, cannot amount to forgery as alleged in the complaint and as per the principles enunciated by the Hon'ble Supreme Court in the case of Mohammed Ibrahim (supra) it is found out that no case of forgery is made out.
26. Now I may come to Section 420 of IPC. Section 415 of IPC deals with 'cheating' and reads as follows:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'.
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."Page 29 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023
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27. It is plain from a bare reading of the Section that to hold a person guilty of cheating, as defined in Section 415 of the IPC, it is necessary to show that at the time of making the promise he had fraudulent or dishonest intention to mislead any authority or to induce the person so deceived to do some thing which he would not otherwise do.
28. The ingredients required to constitute an offence of cheating have been succinctly laid down in Ram Jas Vs. State of U.P., reported in (1970)2 SCC 740 as follows:
"(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
29. Similar views were echoed in Medchl Chemicals & Pharma (P) Ltd. v/s. Biological E. Ltd. & Ors., reported in (2000)3 SCC 269, wherein it was observed that:
Page 30 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023NEUTRAL CITATION R/CR.MA/8718/2014 CAV JUDGMENT DATED: 28/07/2023 undefined "In order to attract the provisions of Sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfill the promise by itself would not attract the provisions of Section 418 or Section 420.
Mens rea is one of the essential ingredients of the offence of cheating under Section 420. As a matter of fact Illustration (g) to Section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract...."
30. It is well settled that in order to constitute an offence of cheating or forgery, the prosecution has to prove that the accused had fraudulent or dishonest intention at the time of making the representation which, in my opinion, the prosecution has completely failed to establish in the present case. My prima facie examination satisfies me that the averments in the FIR if assume to be true, do not make out any offence under Sections 465, 468, 420 and 471 of the IPC.
31. In the result, this application succeeds and is hereby allowed. The First Information Report being I-C.R. No.104 of 2014 lodged with the Athwa Lines Police Station, Surat City is hereby ordered to be quashed. All consequential proceedings arising from the same also stands terminated. Rule is made absolute to the aforesaid extent.
Sd/-
(DIVYESH A. JOSHI,J) VAHID Page 31 of 31 Downloaded on : Sat Sep 16 23:16:50 IST 2023