Punjab-Haryana High Court
Dr. Joginder Kapoor And Another vs State Of Haryana And Another on 7 January, 2020
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision: 07.01.2020
1. CRM-M No.7748 of 2019
Dr. Joginder Kapoor and another .....Petitioners
Versus
State of Haryana and another .....Respondents
2. CRM-M No.21529 of 2019
Surender .....Petitioner
Versus
State of Haryana and another .....Respondents
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present:Mr. Aditya Sanghi, Advocate and
Mr. Lokesh Sharma, Advocate
for the petitioners in CRM-M No.7748 of 2019 .
Mr. N.S. Shekhwat, Advocate
for the petitioner in CRM-M No.21529 of 2019.
Mr. Surender Singh, AAG, Haryana.
Mr. Shokeen Singh Verma, Advocate
for respondent No.2.
****
RAJ MOHAN SINGH, J.
1 of 14 ::: Downloaded on - 19-01-2020 01:04:29 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 2 [1]. Vide this common CRM-M No.7748 of 2019 titled Dr. Joginder Kapoor and another Vs. State of Haryana and another and CRM-M No.21529 of 2019 titled Surender Vs. State of Haryana and another are being disposed of. Both the petitions have arisen from the same FIR, therefore, the facts are being noticed from CRM-M No.7748 of 2019.
[2]. Both the petitions have arisen from common FIR No.0005 dated 04.02.2019 registered under Sections 120-B, 197, 198, 420 IPC and Sections 13(2) and 13(1)(d) of Prevention of Corruption Act at Police Station SVB, Hisar, District State Vigilance Bureau, Hisar, therefore, the facts are being noticed from CRM-M No.7748 of 2019.
[3]. Petitioners prayed for quashing of aforesaid FIR on the ground that on same set of allegations, initially one private complaint was filed by Om Parkash son of Nihal Singh, resident of village Sherpura, Tehsil Siwani, District Bhiwani against the petitioners in the context of disability certificate of Surender who was appointed as J.B.T. Teacher. The aforesaid complaint was filed with the following grounds:-
"1. That the complainant is a poor agriculturist and is a peace-loving citizen of India.
2. That one Surender son of Amar Singh, resident of village Sherpura, where the complainant also resides, is presently working on the post of teacher (JBT) at
2 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 3 Government Primary School, Gharwa.
3. That accused Surender has obtained the above said employment by purporting and showing himself to be handicapped by 70% on the basis of wrong and forged certificate of disability which he succeeded to obtain in collusion and connivance with the accused No.1 to 3. The certificate showing him disabled to the extent of 70% had been issued to the said Surender in the year 2001 by the three doctors working in Civil Hospital, Hisar in collusion with others, whereas Surender is a resident of village Sherpura, Tehsil Siwani, District Bhiwani.
4. That as per the Government Rules, one can obtain his or her disability certificate from the concerned District of which such person permanently resident but the accused Surender, in order to get his disability certificate issued he had showed himself to be permanent resident of village Chirod, Tehsil and District Hisar, which is based on forged and farce documents. According to the documents of title issued by the Government, the said Surender son of Amar Singh is permanent resident of village Sherpura, Tehsil Siwani, District Bhiwani and since his childhood even till date, he has been residing at village Sherpura.
5. That in order to obtain the employment of Government, the accused Surender has not only got procured a forged certificate of disability but he has also obtained his Diploma in JBT from Madhya Pradesh on the basis of farce documents because as per the information derived through RTI Act, 2005, one 3 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 4 can pursue the JBT from Madhya Pradesh only if s/he is permanent resident of Madhya Pradesh and s/he would have gained teaching experience for at least two years in the schools of Madhya Pradesh, whereas the Surender accused is domicile of Haryana and till 2004, he had been a student of BA Final year in the Chhotu Ram Postgraduate College, Hisar. The information derived through RTI Act and the marksheet of Surender issued from Chhotu Ram Postgraduate College, Hisar is enclosed herewith.
6. That the complainant met with SHO, City in order to get the FIR lodged against accused Surender in this regard but the SHO told that only SP, Hisar can direct/order us to lodge the FIR. Thereafter, an application dated 03.05.2012 was moved to the SSP but the SSP, Hisar refused to receive the application. Thereafter, the complainant send the said application through registered post to the SSP Hisar on 12.05.2012 but no action was taken on that application. Thereafter, the complainant again met with the SHO, City, Hisar in the matter but he also showed his inability in lodging the FIR in the matter and stated to get the order from Court if you want to get the FIR lodged. The complainant also wrote to Chief Minister Haryana, DGP Haryana in the matter but till date no action has been taken so far in the matter."
[4]. Judicial Magistrate First Class, Hisar on the basis of preliminary evidence led by the complainant Om Parkash took in the complaint under Sections 420, 467, 468, 471, 120-B IPC 4 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 5 asked for a report under Section 202 Cr.P.C from the police. On the basis of report under Section 202 Cr.P.C, the Court found the documents of accused Surender to be genuine. The allegations of the then complainant i.e. Om Parkash, were found to be false. The complaint was dismissed as sufficient material was not found for summoning of the accused persons. Vide order dated 16.10.2013, trial Court after relying upon M/s Pepsi Food Ltd. and another Vs. Special Judicial Magistrate and others, AIR 1998 Supreme Court 128, dismissed the complaint, as no prima facie case was found to have been made out against the accused persons.
[5]. Feeling aggrieved against the aforesaid order, the complainant namely Om Parkash filed revision petition before the Additional Sessions Judge, Hisar. The said revision petition was dismissed by the Additional Sessions Judge, Hisar after considering the report submitted by the police under Section 202 Cr.P.C. After relying upon Shangara Singh Vs. Joginder Singh, 2000(1) RCR (Criminal) 123, Jagdish Ram Vs. state of Rajasthan and another, 2004(2) RCR (Criminal) 194, Sonu Gupta Vs. Deepak Gupta and others, 2015(2) RCR 32, M/s Lily Hire Purchase Pvt. Ltd. Jalandhar Vs. Darshan Lal, 1997(1) RCR 580, Lajwanti @ Bimla Vs. State of Haryana 5 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 6 and others, 2014(1) RCR (Criminal) 929, Ram Babu Vs. State of Madhya Pradesh and others, 2009(4) RCR 204 and Shivjee Singh Vs. Nagendra Tiwary and others, 2010(3) RCR 466, it was held that certificate of disability of a person will not be considered to be forged, if the same has been issued by the Medical Board of some other jurisdiction in which the disabled person does not reside. Revisional Court also relied upon Madhu Rani Vs. Prem Kumar and others, 2015(3) RCR 889 and observed that Section 202 Cr.P.C is an enabling provision so as to empower the Magistrate to hold an effective inquiry into the truthfulness of the allegations made in the complaint for the purpose of arriving at a requisite satisfaction as to whether sufficient ground is made out to summon the accused persons or not. Summoning of accused in a criminal case is a serious issue and criminal law cannot be set into motion as a matter of course. Magistrate has to apply judicious mind at the time of passing the order of summoning. The Court also observed that at the time of issuance of disability certificate, Surender used to reside with his aunt (Bua) in village Chirod which is within the jurisdiction of District Hisar. The matter was investigated at various stages by Education Department and by the police in hierarchy and it was found that due to party faction between the 6 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 7 complainant of said case with Surender, a false complaint was filed as there are other litigations pending between them. The Court also commented upon requirement of Section 197 Cr.P.C which is mandatory in nature. After relying upon other case laws viz. Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and others, 2015(1) RCR (Criminal) 570, Daljit Singh and others Vs. Sukhwinder Kaur and another, 2016(4) RCR (Criminal) 694, Pooja Ravinder Devidasani Vs. State of Maharashtra and another, 2015(3) SCC (Criminal) 378, Mary Pappa Jebamani Vs. Ganesan and others, 2015(1) SCC (Criminal) 414, Ram Parkash Vs. State of Haryana, 2000 Crl. LJ, 3395 and Raj Kishor Roy Vs. Kamleshwar Pandey and another, 2002(3) RCR (Criminal) 873, Revisional Court dismissed the revision petition by observing that the action of the other accused persons completely falls within the purview of their official duties and the doctors issued the disability certificate in favour of accused Surender in discharge of their official functions. Prima facie, there was requirement of previous sanction for prosecuting them as envisaged under Section 197 Cr.P.C. After noticing the aforesaid facts, Revisional Court dismissed the revision petition vide judgment dated 01.12.2016. The aforesaid judgment has attained finality 7 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 8 as the same was never challenged by the then complainant. [6]. Now after dismissal of the earlier complaint, FIR No. 0005 dated 04.02.2019, under Sections 120-B, 197, 198, 420 IPC and Sections 13(2) and 13(1)(d) of Prevention of Corruption Act at Police Station SVB, Hisar, District State Vigilance Bureau, Hisar has been registered on the complaint of one Karan Singh son of Harphul Singh, Village Sherpura, Tehsil Siwani, District Bhiwani. This complainant is also resident of same village and the context is also the same i.e. alleged fake disability certificate of Surender qua which earlier complaint was dismissed by the Courts below. This time, the Vigilance Bureau is alleged to have investigated the offence and has come to different prima facie conclusion.
[7]. Perusal of the original disability certificate dated 14.03.2001 would show that Surender Kumar son of Amar Singh aged 19 years was handicap to the extent of 70%. Percentage of handicap was shown to be 70%, without recording whether the same was permanent in nature or not. After more than 18 years, another Board of Doctors has issued permanent disability certificate to Surender with an observation that the patient is suffering from Post Polio Residual Paralysis Left Lower Limb and his permanent disability is assessed to the extent of 30%. This certificate is in respect of "permanent disability" as against the 8 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 9 percentage of handicap to be 70% as observed by the earlier Board of Doctors on 14.03.2001. Percentage of handicap may reduce with the passage of time and now disability certificate issued by the doctors shows that permanent disability to be 30% after elapse of more than 18 years.
[8]. Once the criminal complaint on the same subject matter was dismissed by the Magistrate on finding the case not to be fit for even summoning and order was upheld by the Revisional Court, then the FIR on the same subject matter would amount to double jeopardy in terms of Section 300 Cr.P.C. Reference can be made to Jagir Singh and another Vs. State of Haryana and another, 2006(4) RCR (Criminal) 559. Para Nos.11, 17 and 19 of the aforesaid judgment are relevant to be quoted.
"11. It is not disputed that the allegations in the previous complaint, which was dismissed by the JMIC, Jagadhri, and the subsequent complaint, on the basis of which the FIR has been registered, are verbatim the same. It is also not disputed that at the time of filing of the subsequent complaint, respondent No.2 did not disclose the factum of the dismissal of his earlier complaint by JMIC, Jagadhri. It is also not disputed that during the investigation and submitting the challan in the FIR, the investigating agency has also not taken into consideration the order passed by the JMIC, Jagadhri dismissing the earlier complaint. The JMIC, Jagadhri while dismissing the earlier complaint of
9 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 10 respondent No.2 passed a detailed order, copy of which has been annexed with this petition as Annexure P-1. I have perused the said order. The said order was passed by the JMIC after considering the police report sought under Section 202 of the Code as well as the preliminary evidence led by the complainant. From the order, it also reveals that on earlier occasion the police had recorded the statements of Dhani Ram, Mewa Singh and Mahinder Singh as also the complainant and the Court after taking into consideration all the material, including the statement of the complainant in preliminary evidence and the documents produced, came to the conclusion that the complainant has failed to prove that the accused has committed the alleged offence. Now during the investigation of the impugned FIR, the investigating agency has recorded the statements of those very persons and then came to the conclusion that the allegations made by the complainant have been established and thereafter decided to file the challan against the petitioners. In my opinion, on the same material and evidence, the investigating agency has reached to a different conclusion than to the JMIC, who had dismissed the complaint after holding that the complainant has failed to prove that the accused has committed the alleged offence. The said order had become final as it was not challenged by the complainant in revision. In my opinion, when the JMIC while dismissing the complaint under Section 203 of the Code came to the conclusion that the allegations levelled in the complaint and the 10 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 11 material produced on the record did not prove the allegations of fraud and cheating, the lodging of the second complaint by the complainant exactly on the same allegations without there being any change in the facts or in the material or evidence, and registration of the FIR on such complaint and filing of the challan and even framing of the charge on the basis of the said material, is an abuse of the process of the court.
17. Thus, keeping in view the aforesaid legal position with regard to filing and entertaining a second complaint on the same allegations, even the second complaint by respondent No.2 could not have been entertained by the Judicial Magistrate. If the Judicial Magistrate has been debarred from entertaining the second complaint on these facts, in my opinion, on the basis of such complaint with exactly same allegations, the FIR could not have been lodged by the police and the Court should not have taken cognizance on the challan filed by the police in the said FIR. Therefore, in the facts and circumstances of the case, the lodging of the FIR and the consequent proceedings thereon, in my opinion, are totally an abuse of the process of the Court.
19. In the instant case, on the earlier complaint filed by respondent No.2, not only the Magistrate took cognizance of the offence but he also followed the procedure envisaged in Chapter XV of the Code. He sought the police report under Section 202(1) of the Code and also recorded the preliminary evidence of the complainant. Thereafter, he came to the conclusion 11 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 12 that there were not sufficient grounds to proceed against the accused as the complainant had failed to prove that the accused has committed the alleged offence. In such situation, even the Magistrate has no jurisdiction to refer the complaint under Section 156(3) of the Code for investigation and registration of the case. If that is the position, then how on the similar allegations the police can register the case under Section 156 of the Code and investigate the matter, and then come to the conclusion that from the same allegations and the same material, prima-facie a cognizable offence has been made out."
[9]. In Ravinder Singh Vs. Sukhbir Singh and others, 2013(1) RCR (Criminal) 1020, it was held that rule of issue of estoppel prevents re-litigation of an issue which has been concluded in a criminal case. Second trial in respect of same offence is prohibited. The complainant cannot maintain a subsequent cause of action on the same subject matter with the change of complainant. In Shiv Shanker Singh Vs. State of Bihar and another, 2012(1) RCR (Criminal) 14, the Hon'ble Apex Court has observed that second complaint would not be maintainable, wherein the earlier complaint has been disposed of on full consideration.
[10]. In The State Vs. Kuldeep Singh and others, AIR 1960 Punjab 149, Division Bench of this Court has held that 12 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 13 even if, order of acquittal is on technical grounds, it will prevent further prosecution of the accused. The said judgment was followed by this Court in Bant Singh Vs. The State of Punjab 2003(1) RCR (Criminal) 235.
[11]. In T.T. Antony Vs. State of Keral, AIR 2001, Supreme Court, 2637, the Hon'ble Apex Court has strongly commented upon the issue and observed that the registration of subsequent case and investigation thereof, would be illegal and the accused who has been once tried and acquitted would be in jeopardy, if the Court tries him again. In such an event, he would be placed in double jeopardy. Article 20(2) of Constitution of India lays the same phenomena as underlying in Section 300 Cr.P.C. The provisions of Section 300 Cr.P.C are nothing more than an elaboration of principle of double jeopardy. The provisions of Article 20(2) of Constitution of India have also contained the principle of autrefois acquit and such provisions have to be regulated by general law on broad features. [12]. Earlier complaint was dismissed after considering the report of police under Section 202 Cr.P.C. Action of the police in the present FIR contrary to the earlier report, would give rise to questionable impact. Earlier disability certificate was not in the context of permanent disability. It was simply observed in the disability certificate dated 14.03.2001 that percentage of 13 of 14 ::: Downloaded on - 19-01-2020 01:04:30 ::: CRM-M No.7748 of 2019 and CRM-M No.21529 of 2019 14 handicap was 70%. Subsequent disability certificate is in respect of permanent disability of Surender which has been assessed to be 30%. By no stretch of imagination, any such interpretation can be given to the aforesaid certificate as has been given by the prosecution in the FIR.
[13]. For the reasons recorded hereinabove, I deem it appropriate to quash the FIR No.0005 dated 04.02.2019 registered under Sections 120-B, 197, 198, 420 IPC and Sections 13(2) and 13(1)(d) of Prevention of Corruption Act at Police Station SVB, Hisar, District State Vigilance Bureau, Hisar. No challan has been presented so far. Continuation of criminal proceedings in the shape of FIR in question, would be an abuse of process of law and therefore, FIR in question is quashed along with subsequent proceedings, if any, undertaken in pursuance thereof.
07.01.2020 (RAJ MOHAN SINGH)
Prince JUDGE
Whether reasoned/speaking Yes/No
Whether reportable Yes/No
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