Madhya Pradesh High Court
Har Swaroop Shrivastav vs The State Of Madhya Pradesh on 2 March, 2017
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 M.Cr.C. No. 10734 of 2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
Misc. Criminal Case No. 10734 OF 2015
Har Swaroop Shrivastav
-Vs-
State of M. P. & Anr.
________________________________________________
Shri B.B. Shukla, counsel for the applicant.
Shri Girdhari Singh Chauhan, Public Prosecutor for the
respondent No.1/State.
Shri Atul Kumar Sharma, counsel for the respondent
No.2.
________________________________________________
ORDER
(02/03/2017) This petition under Section 482 of CrPC has been filed for quashing the FIR in Crime No.124/2015 registered by Police Station Chinnore, District Gwalior for offences under Sections 419, 420, 467, 468, 471 & 120-B of IPC.
The facts necessary for the disposal of the present application in short are that the respondent No.2 made a complaint against the applicant that his date of birth is 19.01.1954 but by manipulating his date of birth in his service book, he has continued to work on the post of Patwari till 19.11.1954, as a result of which, he has caused financial loss to the State Government by taking salary for the period of 10 months for which otherwise he was not entitled. On this complaint, the police has registered the complaint which is under challenge.
It is submitted by the counsel for the applicant that he 2 M.Cr.C. No. 10734 of 2015 was posted as Patwari and in his service book his date of birth was mentioned as 19.11.1954 and accordingly he was retired by the Department considering his date of birth as 19.11.1954. An objection was raised that his actual date of birth is 19.01.1954 and not 19.11.1954, therefore, he had given in writing that the department may decide his date of birth as per the norms and he will not have any objection to the ultimate decision which will be taken by the department. In the said written application, it was mentioned by the applicant that it is the duty of the authorities to maintain the service book of the employees and he has no access to the same and he was not made known about this dispute on the earlier occasion. As he is unable to locate his mark- sheet, therefore, he is not in a position to produce the same. By referring to the note sheet dated 17.1.2014, it was further submitted that in case of a dispute with regard to the date of birth of an employee, the date of birth mentioned in the service book will have preference and will be treated as an authentic one. Since, the date of birth of the applicant mentioned in the records of the office of Sub Treasurer is different from that of date of birth mentioned in the service book of the applicant, therefore, the situation of confusion has arisen.
It was further submitted by the counsel for the applicant that considering 19.11.1954 as his authentic date of birth, the applicant was superannuated by the department w.e.f. 30.11.1954. The respondent No.2 has personal grudge against the applicant and, therefore, he filed a petition under Article 226 of Constitution of India seeking a direction to the authorities to take necessary action on his complaint in the light of the judgment passed by the Supreme Court in the case of Lalita Kumari Vs. 3 M.Cr.C. No. 10734 of 2015 State of U.P. reported in (2014) 2 SCC 1 and a direction was given by this Court to conduct a preliminary enquiry. Being aggrieved by the said order, the applicant had filed a writ appeal No.201/2015 which was disposed off by the Division Bench of this Court by order dated 24.08.2015 with the following liberty:-
"However, it is made clear that this order shall not debar the appellant to file any paper or documents before the authorities of respondents but in any case such authorities shall consider the same keeping in view the principle laid down by the Apex Court in the above-cited case."
It is submitted that the order was passed on 24.08.2015 and the applicant got the certified copy of the said order on 26.08.2015 and on 27.08.2015 when he went to supply the order to the authorities then he was told that the FIR has already been lodged. It was further submitted that the moment the authorities came to know about the order passed by this Court in W.A.No.201/2015, the FIR was lodged in a haste.
It is further submitted by the counsel for the applicant that the service book of the applicant is missing from the office as a result of which his pension has also not been fixed. It is further submitted that in fact the respondent No.2 has access to the service book of the applicant which is evident from the fact that he has filed a photocopy of the mark-sheet of the applicant before this Court in writ petition to demonstrate that his date of birth is 19.01.1954. The counsel for the applicant further relied on a judgment passed by the coordinate Bench of this Court in the case of Mahendra Dixit v. State of M.P. & Anr., reported in 2015 (3) MPLC 21 (MP) and submitted that when the question of correctness of the date of birth was decided by the department itself then the police should not have 4 M.Cr.C. No. 10734 of 2015 registered the FIR.
Per contra, the counsel for the State and the respondent No.2 submitted that the applicant has not disowned the mark-sheet filed by the respondent No.2 in which the date of birth of the applicant is clearly mentioned as 19.01.1954. The moment, fraud played by the applicant was brought to the notice of the authorities, the service book of the applicant got misplaced. However, the counsel for the respondent No.2 submitted that now the service book of the applicant has been traced but first two pages in which the date of birth of the applicant is mentioned have been torned.
It is submitted by the counsel for the respondent No.2 that who is responsible for the misplacing of the service book could be inferred from the fact that it is the applicant who would get the benefit of non-availability of the service book. It is further submitted that so far as the note-sheet dated 17.01.2014 is concerned, he has not filed the complete note-sheets. However, from the note-sheet, which is Annexure P-6, it is not clear that who has written this note-sheet. As the instructions were sought from the Tahsildar, therefore, it is clear that some authority lower in rank has written this note-sheet. It is further submitted that there is nothing on record to show that any departmental inquiry was conducted so as to ascertain the date of birth of the applicant. It was very easy for anybody to manipulate the date of birth by changing the month from 01 to 11. It is further submitted that a fixture of sellotape on the date of birth in the service book clearly shows that it was done at a later stage.
Heard the learned counsel for the parties and perused the documents filed along with the petition.
5 M.Cr.C. No. 10734 of 2015The centripetal question for adjudication in the present case is that whether the service book of the applicant was interpolated by anybody by changing the date of birth from 19.01.1954 to 19.11.1954 or not?.
The mark-sheet which has been produced by the applicant along with this petition clearly shows the date of birth as 19.01.1954. It is not the case of the applicant that the date of birth mentioned in the mark-sheet is incorrect. Further, it is undisputed fact that 19.11.1954 was mentioned as date of birth in the service book of the applicant. In absence of any challenge to the date of birth mentioned in the mark-sheet, it is clear that the correct date of birth of the applicant was 19.01.1954. The respondent No.2 has also pointed out that now the service book of the applicant has been recovered but the first two pages containing the date of birth of the applicant have been torned and they are missing.
Without commenting on the recovery of the service book and removal of first two important pages from the service book, it is observed that by the present petition the applicant has sought the quashment of the FIR. The investigation cannot be quashed at the earliest stage as the complaint made by the complainant discloses commission of cognizable offence.
The following two facts emerges in the present case:-
(i) That 19.1.1954 has not been disputed by the applicant as his correct date of birth.
(ii) The date of birth as mentioned in the service book of the applicant is 19.11.1954.
Whether it was a manipulation or it was a wrong entry made at the very beginning of the preparation of service book is the main question which is to be decided by the 6 M.Cr.C. No. 10734 of 2015 police after concluding the investigation. If the contention made by the counsel for the respondent No.2 that two pages of the service book in which the date of birth of the applicant was mentioned have been torned out is considered, then it is clear that something is missing and some one is trying to hide the correct facts, therefore, under these circumstances, a detailed investigation in the matter is essential. If the date of birth mentioned in the service book of the applicant is manipulated and any change is made without any authority of law then it would certainly amount to an offence.
So far as the next contention of the counsel for the applicant that relying on the date of birth mentioned in the service book of the applicant, the department had superannuated him w.e.f. 30.11.2014 is concerned, suffice it to say that the departmental decision as well as the criminal action are two different things. Even if a person has been exonerated in the departmental enquiry then that by itself would not mean that he cannot be criminally prosecuted.
The Supreme Court in the case of State (NCT of Delhi) v. Ajay Kumar Tyagi reported in (2012) 9 SCC 685 has held as under:-
"24. Therefore, in our opinion, the High Court quashed the prosecution on total misreading of the judgment in P.S. Rajya v. State of Bihar, (1996) 9 SCC 1. In fact, there are precedents, to which we have referred to above, that speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in a department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental 7 M.Cr.C. No. 10734 of 2015 proceeding or the report of the inquiry officer based on those evidence.
25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarcy."
Therefore, merely because the applicant was superannuated by the department on the basis of the date of birth mentioned in the service book it would not mean that the applicant cannot be criminally prosecuted.
So far as the judgment relied upon by the applicant in the case of Mahendra Dixit (supra) is concerned, suffice it to say that it has no application in the present case.
The Supreme Court in the case of Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and Ano., reported in (2006) 7 SCC 188 has held as under:-
"10. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and 8 M.Cr.C. No. 10734 of 2015 on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P. P. Sharma (AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR 1999 SC 1044), State of U.P. v. O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC 2983), Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259) and in State of Karnataka v. M. Devendrappa and Another (2002 (3) SCC 89)."
Considering the facts and circumstances of the case, this Court is of the view that when the applicant has not disputed that his correct date of birth is 19.01.1954 and the date of birth mentioned in his service book was 19.11.1954, then this Court is of the view that it is a case which requires investigation and the FIR cannot be quashed at the very first instance because the complaint do disclose the commission of cognizable offence. Whether the date of birth 9 M.Cr.C. No. 10734 of 2015 mentioned in the service book was because of bonafide mistake at the time of preparation of the service book or it was manipulated at the later stage and if it was so manipulated then who did the said manipulation are certainly highly disputed question of facts which are required to be investigated in detail.
The disputed questions of fact which have been raised by the applicant cannot be decided in exercise of powers under Section 482 of CrPC.
Accordingly, this petition fails and is hereby dismissed.
(G.S. AHLUWALIA) Judge (02.03.2017) (ra)