Uttarakhand High Court
Mukesh Kumar vs Central Bureau Of Investigation on 6 March, 2017
Author: U. C. Dhyani
Bench: U. C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Misc. Application No.1454 of 2015
Mukesh Kumar ... Applicant
vs.
Central Bureau of Investigation ... Respondent
Mr. U. K. Uniyal, Sr. Advocate assisted by Mr. Sandeep Kothari, Advocate present for the
applicant.
Mr. Sandeep Tandon, Advocate present for the C.B.I.
U. C. Dhyani, J.
1. By means of present Application under Section 482 Cr.P.C., the applicant seeks following relief, among others:
"To quash the impugned order on charge dated 19.10.2015; framing of charges dated 31/10/2015 by the Special Magistrate, CBI, Dehradun in C.B.I. Case No.620 of 2014; CBI vs. Mukesh Kumar under Section 120- B/420/468/471 IPC pending in the Court of Special Judicial Magistrate (C.B.I.)/ACJM First Dehradun, Uttarakhand and also quash further / entire proceeding C.B.I. Case No.620 of 2014 C.B.I. vs. Mukesh Kumar under Section 120-B/420/468/471 IPC pending in the Court of Special Judicial Magistrate (C.B.I.) / ACJM First Dehradun, Uttarakhand."
2. An application under Section 239 Cr.P.C. was moved by the applicant before the trial court for seeking his discharge. The said application was dismissed. Thereafter, the charge for the offences punishable under Sections 420, 468, 471 IPC read with Section 120-B IPC was framed, vide order dated 31.10.2015. The same is subject matter of challenge in the present application under Section 482 Cr.P.C. The controversy in the instant case -2- revolves around chargesheet no.2/2005, which has been forwarded by the CBI against the applicant on the allegation that he (applicant), for the purpose of seeking a government job, had procured a Scheduled Caste certificate on 03.08.1993 from the office of Tehsildar, Deoband. The prosecution case is that for doing so, the applicant entered into a criminal conspiracy with Bhishambari Devi and Nakli Ram, who were the members of Scheduled Castes community. Both of them executed an adoption deed in the year 1993 so that the applicant may get a government job in that category. The need for getting a caste certificate arose because the applicant was jobless and he was going to be overage for a government job. With the aforesaid objective, the applicant procured a caste certificate on 03.08.1993.
3. It is submitted on behalf of the applicant that when the applicant moved an application under Section 91 Cr.P.C. for procuring a copy of the affidavit, which was stated to be filed by him in the office of Tehsildar, Deoband, the C.B.I. opposed the said application saying that the same has not been relied upon by them. Thus, there is no document available with the prosecuting agency to show concealment on the part of applicant before the Tehsildar, Deoband. It is further submitted by learned senior counsel for the applicant that it is an admitted case of the prosecution that the applicant was born on 04.11.1968 and the advertisement against which the applicant applied for the job was published in the year 1993. Admittedly, the applicant was within the age limit for applying government job, which he got subsequently. It is also contended on behalf of the applicant that no prima facie case is made out against the applicant and learned trial court has framed charges against the applicant -3- without applying its mind and, therefore, the impugned order is liable to be set aside.
4. Today also, learned senior counsel for the applicant reiterated that the adoption cannot be a fraud exercise; the alleged forged affidavit on the basis of which the caste certificate was issued could become a criminal act, but that is not the basis of present controversy, inasmuch as the affidavit has not been brought on record by the prosecution and the prosecution has also admitted that they do not rely upon such affidavit; law as well as the presumption is in applicant's favour. In reply thereto, learned counsel for the C.B.I. again submitted that the application under Section 91 Cr.P.C. has been dismissed; the applicant ought to have filed a criminal revision and not an application under Section 482 Cr.P.C.; discharge has very limited scope; Hon'ble Supreme Court has already given observations against the applicant and, therefore, the applicant cannot seek his discharge at this stage.
5. When the caste certificate of the applicant dated 03.08.1993 was cancelled by the Tehsildar, Deoband, vide order dated 26.06.2006, he (applicant) filed a Civil Misc. Writ Petition No.39734 of 2006 before the Allahabad High Court. Vide order dated 27.07.2006, the said petition was disposed of by directing that a fresh order would be passed by the Tehsildar after giving opportunity of hearing to the applicant. After giving due opportunity of hearing to the applicant, the Tehsildar, Deoband passed a detailed order dated 15.01.2007 again cancelling the caste certificate of the applicant. Feeling aggrieved, the applicant preferred a writ petition no.4179/2007 before the Allahabad High Court, wherein it was held, vide order dated 25.08.2010:
"On the facts and circumstances mentioned above, the order of the Tehsildar cannot sustain in the eyes of law -4- and is hereby quashed. As per registered adoption deed petitioner is declared belonging to Scheduled Caste. However, it is left open for any person aggrieved by the said adoption he may file civil suit to get it declared void and cancelled."
6. Feeling aggrieved by the order dated 25.08.2010, the CBI preferred a Civil Appeal no.1650 of 2011 before the Hon'ble Apex Court. Vide order dated 14.02.2011, the Hon'ble Supreme Court allowed the said appeal and made certain observations, which are quoted hereinunder:
"The first question which needs to be addressed is whether respondent No.3 was justified in cancelling the caste certificate issued in favour of respondent No.1. The factual matrix of the case show that after three years of his birth, respondent No.1 is said to have been adopted by Shri Nakli Ram (who belong to Scheduled Caste), s/ o Harnand, r/o Thamna Mazra Rankhandi village Ghaloli Post Office, Tehsil Devband, District Saharanpur. The biological father of respondent No.1 died in 1971. After almost 23 years of his so called adoption and 22 years of the death of his biological father, the alleged adoptive father of respondent No.1 and his biological mother are said to have executed an adoption deed dated 28.7.1993 and got the same registered. Within next five days, respondent No.1 succeeded in persuading the then Tehsildar, Deoband to issue caste certificate dated 3.7.1993 in his favour. On the very next day, he applied for appointment as Inspector, Central Excise/Customs/ Income Tax by claiming himself to be a member of Scheduled Caste and succeeded in that venture inasmuch as the Staff Selection Commission considered his candidature by relaxing the condition of upper age limit and he was appointed as Inspector, Central Excise on -5- 13.10.1995 against the post reserved for Scheduled Caste. After another four years, respondent No.1 got published advertisements dated 11.4.1999, 18.4.1999 and 25.4.1999 in Hindustan Times inviting offers for marriage from a girl belonging to Aggarwal/ Goyal caste by claiming that he belongs to that caste. These advertisements induced Shri Shammi Kapoor (baniya by caste) resident of Ludhiana to marry his daughter with respondent No.1 in May, 2000. However, the adventure of respondent No.1 ended in 2006 when a case was registered by the Central Bureau of Investigation for offences under Sections 120B, 420, 468 and 471 IPC and upon receipt of communication dated 27.3.2006 from the appellant, respondent No.3 finally cancelled the caste certificate after complying with the rules of natural justice.
The most striking features of the manipulative exercise undertaken by respondent no. 1 for obtaining caste certificate dated 3.8.1993 for the purpose of securing employment as Inspector, Central Excise are:
(i) Although the biological parents of respondent No.1 are said to have given him in adoption to Shri Nakli Ram and his wife Simro Devi (Scheduled Caste) in 1970, but the record including the so called adoption deed dated 28.7.1993 does not contain the particular date on which the adoption ceremonies are said to have been performed. The deed of adoption was executed and got registered after 23 years.
(ii) Adoption deed dated 28.7.1993 speaks of the presence of relatives and friends but name of none of the so called relatives and friends has been mentioned in the deed. The deed is also conspicuously silent about the give and take ceremony.
-6-(iii) Within 5 days of the execution of the so called adoption deed and registration thereof, respondent No.1 succeeded in obtaining caste certificate from respondent No.3 on the basis of the so called report of Lek Pal and Kanungo.
(iv) On the very next day, i.e. 4.8.1993, respondent No.1 applied for recruitment as Inspector and got employment as Inspector, Central Excise against the quota of Scheduled Caste.
(v) After six years of the execution of adoption deed, respondent No.1 got published three matrimonial advertisements in Hindustan Times inviting proposal of marriage by claiming that he belongs to Aggarwal/ Goyal community and indicated that he wanted to marry suitable bride belonging to Aggarwal/ Goyal caste and ultimately married a girl from that caste.
(vi) Respondent No.1 completed his primary education from a school in Village Tanshipur. He passed VIII class from Roorkee and X class from Satyug Ashram Model Inter College, Saharanpur. In the certificate issued by the College at Saharanpur, permanent address of respondent no.1 has been mentioned as Village Tanshipur.
(vii) In the voter's list of Assembly and Parliament elections for 1993, 1995 and 1999 as also in the voter's list of Gram Sabha election, name of respondent No.1 has been shown in village Tanshipur and not in the voter's list of village Thamna to which his so called adoptive -7- parents belong. Only in the voter's list of 2003, his name is shown in village Thamna.
(viii) Respondent No.1 got his name removed from the register of village Tanshipur and included in the register of village Thamna in August, 2004.
(ix) The so called adoptive parents of respondent No.1 Shri Nakli Ram and Smt. Simrao Devi have been receiving old age pension on the premise that both are issueless. The pension payable to Shri Nakli Ram was stopped only on 31.03.2004.
Unfortunately, the Division Bench of the High Court overlooked the manipulations made by respondent no.1 and deceit practice by him and allowed the Writ Petition on the spacious ground that adoption deed had not been challenged by anyone and respondent no.3 did not have the jurisdiction to treat the adoption of nullity. In our view, respondent no.3 had the jurisdiction to consider whether respondent no.1 had obtained caste certificate by playing fraud and deceit and affirmative conclusion recorded by him did not suffer any legal infirmity which could justify interference by the High Court under Article 226 of the Constitution.
There is another reason why the High Court should not have tinkered with the order of respondent No.3. Respondent No.1 could not explain as to why his adoption was not translated in the form of a written deed for 23 years. Everything was done in 1993 just after publication of the advertisement for recruitment of Inspectors in Income Tax Department. He has also not explained as to why he inserted advertisements in 1999 by claiming himself to be a member of Aggarwal / Goyal caste and married a girl belonging to that caste. How is so called adoptive parents took old age pension from 2001 to 2004 by claiming that they are issueless has also -8- not been explained by Respondent No.1. His biological mother's participation in the execution of adoption deed is quite understandable. She must have done so out of her love and affection for his son, who had by that time crossed the upper age limit for employment as a general category candidate. However, the High Court was duty bound to read between the lines and decline relief to respondent No.1 by invoking the settled principle that the High Court will not exercise jurisdiction under Article 226 of the Constitution if it results in perpetuation of illegality, fraud and deceit.
In the result, the appeal is allowed. The impugned order is set aside and the writ petition filed by respondent No.1 is dismissed."
[emphasis supplied]
7. In the meanwhile, when a chargesheet was filed against the applicant, he filed an application under Section 482 Cr.P.C. bearing no.63 of 2006 before this Court. Vide order dated 20.7.2012, the said petition was allowed and the order taking cognizance against the applicant was set aside. Feeling aggrieved by the order dated 20.07.2012, the CBI filed a criminal appeal no.277 of 2014 [arising out of S.L.P. (Crl.) no.1596 of 2013], wherein the Hon'ble Supreme Court passed the following order on 27.01.2014:
"This appeal has been filed against the judgment and order passed by the High Court of Uttarakhand dated 20th July, 2012 whereby the order of the Trial Court, taking cognizance of the charge against the respondents was set aside. The respondent is facing the prosecution under Section 120-B, 420, 468 and 471 IPC. The case is numbered as CBI Case No.2450 of 2005. The charge has been filed. This was for the reason that he fraudulently obtained the Scheduled Caste Certificate and on the basis -9- of which he secured his job as the Inspector of Central Excise and Customs. He has been facing that prosecution. Thereafter, the respondent filed a Criminal Miscellaneous Application No.63 of 2006 before the Uttarakhand High Court for quashing the summoning order and the charge-sheet under Section 482 Cr.P.C. and the same has been allowed by the High Court on the ground that the allegations are nothing but surmises and conjectures and there is no adequate corroboration to the statement made under Section 161 of the Criminal Procedure Code. We are not at all satisfied with the reasoning given by the High Court and we are of the view that the respondent must face the prosecution. Therefore, the appeal is allowed. The order of the High Court is set aside. The above Criminal Application will stand dismissed. The C.B.I. Case No.2450 of 2005 will proceed in accordance with law."
[emphasis supplied]
8. Learned counsel for the CBI relied upon a decision of Hon'ble Supreme Court in Shoraj Singh Ahlawat & others vs. State of U.P. & another, AIR 2013 SC 52 to argue that there are several considerations for the discharge of the accused and judging by the same, present applicant is not entitled to be discharged.
9. First of all, the Court has to see what is the scope of interference in framing of charge? The Hon'ble Supreme Court in Shoraj Singh Ahlawat (supra) while relying upon various decisions rendered in Preeti Gupta & another vs. State of Jharkhand & another (2010) 7 SCC 667, Union of India vs. Prafulla Kumar Samal & another, (1979) 3 SCC 4; Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368; State of Orissa vs. Debendra Nath -10- Pandhi, (2005) 1 SCC 568; Onkar Nath Mishra & others vs. State (NCT of Delhi) & another, (2008) 2 SCC 561; Shakson Belthissor vs. State of Kerala & another, (2009) 14 SCC 466 and Rumi Dhar (Smt.) vs. State of West Bengal & another, (2009) 6 SCC 364, has observed as follows:
"8. On behalf of the appellant it was argued on the authority of the decisions of this Court in Preeti Gupta and Anr. v. State of Jharkhand & Anr. (2010) 7 SCC 667, Union of India v. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4, Sajjan Kumar v. Central ureau of Investigation (2010) 9 SCC 368, State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath Mishra and Ors.
v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561, Shakson Belthissor v. State of Kerala and Anr. (2009) 14 SCC 466, and Rumi Dhar (Smt.) v. State of West Bengal and Anr. (2009) 6 SCC 364, that while considering an application for discharge the Court can examine the evidence on record and discharge the accused persons if there is no possibility of the accused being found guilty on the basis of such evidence specially in cases where the accused produces unimpeachable evidence in support of his defence. It was also contended that while examining whether the Court should or should not discharge the accused, it must be remembered, that Section 498-A of the IPC is a much abused provision and that exaggerated versions of small incidents are often resented to falsely implicate, harass and humiliate the husband and his relatives. Applying the principles set out in the above decisions the appellants were, according to Ms. Geeta Luthra, learned counsel appearing for them, entitled to a discharge not only because there was an inordinate delay in the filing of the complaint by respondent No.1 but also because the statements made under Section 161 -11- Cr.P.C. by the witnesses who were either planted or merely chance witnesses were contradictory in nature. It was argued that two Investigating Officers having investigated the matter and found the allegations to be false, there was no reason for the Court to believe the story set up by the wife who had suffered a decree for divorce in regard to which she had written to the Army Authorities a letter dated 2nd October, 2006 stating that she was not pursuing the matter in any Court. Appellant No.3-Naveen Ahlawat having got re-married on 30th October, 2006 the incident referred in the complaint was a fabrication which aspect the Courts below had failed to consider thus failing to protect the appellants against harassment and the ignominy of a criminal trial.
9. On behalf of respondent No.2, it was per contra argued that her husband had filed a divorce petition against her in the Family Court, Meerut showing respondent No.2 to be residing with her parents at 327, Prabhat Nagar, Meerut, whereas she was actually residing with the appellants along with her daughter at No. 9, Tigris Road, Delhi Cantt, Delhi. It was further argued that appellant No.3 had obtained an ex parte decree order of divorce by fraudulent means and by forging signatures of respondent No.2, acknowledging receipt of the notice which she had never received from the concerned Court. This was conclusively established by the fact that the ex parte decree dated 31st May, 2006 had been eventually set aside by the Court in terms of order dated 28th July, 2007. Allegations regarding physical torture of respondent No.2 and her being abandoned on the road on the date of incident in question as also the allegation about dowry harassment were factually correct and made out a clear case for prosecuting the appellants. Appellant No.3 had, -12- according to the counsel for the respondent, married one Aditi on 30th October, 2006. It was also argued that letter referred to by appellant No.3 as also letter dated 2nd November, 2006 allegedly written by respondent No.2 were forgeries committed by the appellants. The trial Court was, in the light of the available material, justified in refusing to discharge the accused persons and that the grounds for discharge set up by the appellants could be examined only after the case had gone through full-fledged trial. Reliance was placed upon a decision of this Court in Union of India v. Prafulla Kumar Samala and Anr. (1979) 3 SCC 5.
10. The case at hand being a warrant case is governed by Section 239 of the Cr.P.C. for purposes of determining whether the accused or any one of them deserved to be discharged. Section 239 is as under:
"239. When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
11. A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the -13- Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561. That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents in- law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out.-14-
At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence ."
(emphasis supplied)
12. Support for the above view was drawn by this Court from earlier decisions rendered in State of Karnataka v. L. Muniswamy 1977 Cri.LJ 1125, State of Maharashtra & Ors. v. Som Nath Thapa and Ors. 1996 Cri.LJ 2448 and State of M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In Som Nath's case (supra) the legal position was summed up as under:
"if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. "
(emphasis supplied)
13. So also in Mohanlal's case (supra) this Court referred to several previous decisions and held that the judicial opinion regarding the approach to be adopted for framing of charge is that such charges should be framed if the Court prima facie finds that there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence as if to -15- determine whether the material produced was sufficient to convict the accused. The following passage from the decision in Mohanlal's case (supra) is in this regard apposite:
"8. The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."
14. In State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568, this Court was considering whether the trial Court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words:
"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced...... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a -16- plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.........
xx xx xx xx
23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material..."
(emphasis supplied)
15. Even in Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364, reliance whereupon was placed by counsel for the appellants the tests to be applied at the stage of discharge of the accused person under Section 239 of the Cr.P.C., were found to be no different. Far from readily encouraging discharge, the Court held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The Court observed:
"...While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned -17- Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law...
16. To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal and Anr. v. (1979) 3 SCC 4, where this Court was examining a similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has -18- to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
10. On the strength of above case laws, the trial court was required to examine whether there was ground for presuming that the accused has committed an offence or not. At the stage of framing of charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At this stage, the trial court is not expected to go deep into the probative value of material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At this stage, the trial court is required to see that even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.
11. Learned Special Judicial Magistrate, CBI vide order dated 19.10.2015 has dealt with as to why the accused (applicant herein) should not be discharged, and as to why the charge should be framed against him. Thereafter, vide order dated 31.10.2015 she has framed the charge against the accused to which he pleaded not guilty and claimed trial. The trial court, in the impugned order, has mentioned that it is admitted to the -19- accused that he is the adopted son of late Nakli Ram. (Is it a sheer co-incidence or a manipulative exercise that the name of biological father of the applicant is Nakli Ram, as also the name of adoptive father?). Late Nakli Ram had no issue. The accused (applicant herein) was adopted as per the provisions of Hindu Adoption and Maintenance Act, 1956 in the year 1970. Such adoption has never been put to challenge. The name of the applicant has been recorded as such. Nobody objected to the succession of present applicant in the property of late Nakli Ram. The adoption deed has not been put to challenge. In school documents, he was also recorded as the son of late Nakli Ram. Learned Magistrate has mentioned in the impugned order that the charge against the accused, in the chargesheet submitted by the CBI, is not that the caste certificate is a forged document, but the charge is that the affidavit, which has been filed by the accused for procuring caste certificate before the Tehsildar, Deoband, is false, as he has admitted that he was born in traders' / business community, in the year 1970, he was adopted by scheduled caste parents and, therefore, he belongs to scheduled caste category. The caste certificate was issued in his favour on 03.08.1993. The contention of learned counsel for the applicant was that since the caste certificate was issued by the competent authority, therefore, no action can be taken against him. The affidavit filed by the applicant before the Tehsildar, Deoband was not produced before the trial court. An application under Section 91 Cr.P.C. was moved by the applicant for production of the affidavit filed by him before the Tehsildar, but the CBI could not produce the application as well as the affidavit filed by the applicant before the Tehsildar, Deoband. The objection taken by the CBI before the trial court was that the applicant was born on 04.11.1968 in a trader's family in 1971; the biological father of the applicant died; the applicant took his -20- primary education at Roorkee; he passed out Class X as a private candidate; in his school certificate, his permanent address was shown to be of Tansipur, Roorkee, which is the address of his biological parents. The accused was growing in age, unable to get any Government job, he contacted one Sahab Badloo of district Muzaffar Nagar in the year 1993. Sahab Badloo introduced him to one co-villager Chandrapal, who lived near the sweet shop of the brother of the accused. The accused expressed his eagerness to get a job. He also said that if he is adopted by the parents of scheduled caste category, he will be able to get government employment. It would be better if his name is Nakli Ram. Chandra Pal and Sahab Badloo contacted one Nakli Ram of scheduled caste category and requested him to adopt the accused. Nakli Ram agreed to do so on certain terms.
12. In the meanwhile, the vacancies for the post of Inspector in Central Excise were advertised. His biological parents prepared an adoption deed on 28.07.1993, which was got registered before Sub-Registrar, Roorkee describing therein that the accused was adopted by the adoptive father (Nakli Ram) in the year 1970. It was also mentioned that since then his adoptive father is taking his care and is giving him education. Thereafter, the applicant was appointed as Inspector in the Central Excise under scheduled caste category. In the electoral rolls of Lok Sabha and Vidhan Sabha of the years 1993, 1995 and 1999, as also the electoral rolls of village panchayat and district panchayat of the year 1999, the applicant's name was found in village Tansipur, the village of his biological parents. Later on, the accused managed to get his name registered as voter in the year 2003. The applicant gave an advertisement in Hindustan Times for his matrimony in the year 1999 in which he showed himself to be a member of traders' community. He also married to a girl of -21- business community. In the year 2001, he got an entry in his favour as adopted son of Nakli Ram. The entire exercise was done for the purpose of procuring a government job. His biological parents were, therefore, chargesheeted for the same offence but with the aid of Section 120-B IPC. The Tehsildar, Deoband has, after due enquiry, cancelled the caste certificate on 26.06.2006. The Tehsildar, Deoband was directed to further probe the matter with the intervention of Hon'ble High Court of Allahabad. In compliance thereof, the Tehsildar again enquired into the matter and cancelled the caste certificate on 15.01.2007. The applicant approached the Hon'ble Allahabad High Court, who was of the opinion that the Tehsildar, Deoband has no jurisdiction, against which an SLP was preferred before the Hon'ble Supreme Court, who struck down the order.
13. So far as the application, as also the affidavit filed by the applicant before the Tehsildar, Deoband, are concerned, it was replied that the said documents are not traceable, inasmuch as the then record keeper Shri C. B. Singh had died.
14. Section 5 of Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the 'Act') prescribes that adoption shall be regulated by Chapter II of the Act. It provides that any adoption made in contravention of these provisions shall be void. Section 6 of the Act provides for requisites of a valid adoption. Section 11 (vi) of the Act is important in the context of present controversy, which says that the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth.
-22-15. It, therefore, follows that actual giving and taking of the child in adoption by the parents concerned with intent to transfer the child from the family of its birth is essential, which as per the prosecution story, as also the finding recorded by the trial Court did not, in fact, take place. The reasons have been assigned by the trial court in para 16 of the judgment under challenge saying that there was no actual giving and taking in adoption of the accused with intent to transfer him from the family of his birth; he continued to remain attached and lived with his biological parents. The Investigating Officer has recorded the statements of 30 witnesses, who denied adoption of the accused by his adoptive father. Further, in electoral rolls, the accused has nowhere been shown as the family members of his adoptive parents. In school records also, upto Class 10th, he showed himself to be the son of his biological parents. The cause and effect of non-production of the application, as also the affidavit filed by the applicant before the Tehsildar, Deoband has been sufficiently explained by the learned trial Court in paras 23 and 24 of the judgment under challenge. This Court need not reproduce these paragraphs.
16. It was, therefore, prima facie, inferred by the trial court that provision of Section 11(vi) of the Act was observed by breach. The fact remains that the adoption deed has never been put to challenge, but such fact alone will not make out a case of discharge of the accused. What will be the effect of non-challenge of adoption deed will be evaluated by the trial Court in due course. As has been mentioned in one of the forgoing paragraphs of the judgment, the scope of the discharge is limited to the extent that if on the basis of materials on record, a court could come to the conclusion that the commission of offence is a probable consequence, a case for framing of charge exits. To put it differently, if the court were to think that the accused might -23- have committed the offence it can frame charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is, therefore, apparent that at the stage of framing of charge, the probative value of materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. The crystallized judicial view is that, at the stage of framing of charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
17. Judging by the aforesaid yardsticks, this Court is unable to interfere with the order under challenge, whereby charge was framed against the accused/applicant. There is no illegality and infirmity in the order under judicial review before this Court. The reasons have been assigned by the trial court in coming to the conclusion as to why charge should be framed against the accused.
18. When factual foundation of any offence is laid against the accused-applicant, then this Court should not intervene in exercise of its inherent jurisdiction, unless, of course, this Court, on the basis of cogent reason, finds that the same will be abuse of the process of the Court. It is also a well settled law that the inherent powers of this Court under Section 482 Cr.P.C. should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section. In the instant case, the accused-applicant is unable to pass those tests and it is not a fit case where such jurisdiction should be exercised.
-24-19. No interference is called for in the order under challenge. The application under Section 482 Cr.P.C., therefore, fails and is dismissed.
(U. C. Dhyani, J.) Dated Rawat 06th March, 2017