Rajasthan High Court - Jodhpur
Shailesh Mohan vs State And Anr on 23 October, 2019
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2597/2017
Shailesh Mohan Son Of Mohan Lal, Resident Of T- 3/41, K.
Anupratap Colony, Bhabha Nagar, Rawatbhatta Police Station,
District Chittorgarh.
----Petitioner
Versus
1. The State Of Rajasthan
2. L.k. Arya Son Of Shri R.p. Arya, Resident Of Type 3/33-L,
Anu Pratap Colony, Rawatbhatta, District Chittorgarh
----Respondents
For Petitioner(s) : Mr. J.V.S. Deora
For Respondent(s) : Mr. vikram Sharma Adv
Mr. L.K. Arya, respondent no.2
present in person
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 23/10/2019 Instant misc. petition has been filed by the petitioner for quashing of FIR No. 172/2016 registered at Police Station Rawatbhatta, District Chittorgarh for offence under Section 420, 467, 468, 471, 477, 120B IPC.
Brief facts of the case are that the complainant L.K. Arya filed a complaint before the court of Additional Chief Judicial Magistrate, RawatBhata, District Chittorgarh to the effect that son of Shailesh Mohan was born on 04.06.2006 at Kota and entry to this effect was recorded in the service record of the petitioner and hospital record, however, the petitioner with malafide intention on the basis of forged and fabricated documents got the birth certificate of his son issued from the Municipal Council, Rawatbatta (Downloaded on 24/10/2019 at 08:49:35 PM) (2 of 11) [CRLMP-2597/2017] with date of birth as 04.06.2007 and obtained undue benefits. Similar allegations were levelled against some other persons also. It was stated in the application that a complaint in this regard was made to the authorities of N.P.C.I.L/ Department of Atomic Energy, Rawatbatta. The complaint was forwarded to the Police Station, Rawatbatta under Section 156(3) Cr.P.C. upon which FIR No. 172/2016 was registered against the petitioner for offence under Section 420, 467, 468, 471, 477, 120B IPC.
Counsel for the petitioner submits in the first instance that the complainant has no locus whatsoever to file the present FIR. Further the FIR does not disclose commission of cognizable offence by the petitioner as the petitioner's son Manan was in fact born on 04.06.2006 but on a wrong advice, he filed an application at Rawatbhata for obtaining birth certificate in which date of birth was wrongly mentioned as 04.06.2007. When the petitioner came to know about this fact, he filed an application before the Municipal Council Rawatbhata for correction in the date of birth of his son upon which a fresh certificate was issued with corrected date as 04.06.2006. Thus, the complainant only with a view to harass and pressurize the petitioner, filed the present FIR. Therefore, it is prayed that the FIR No. 172/2016 may be quashed. He placed reliance on the decision rendered in the case of Prisoners Right Forum represented by its Director P. Pugalenthi Vs. State of Tamil Nadu reported in 2019 SCC Online Mad 2476.
Per contra, learned Public Prosecutor submits that from the case diary as well as statements and documents collected during investigation, it is prima facie clear that the petitioner did commit forgery and all the offences are prima facie made out against the petitioner. The complainant respondent no.2 present in person (Downloaded on 24/10/2019 at 08:49:35 PM) (3 of 11) [CRLMP-2597/2017] submits that the petitioner in order to receive undue benefits filed an application alongwith affidavit before the Municipal Council Rawatbhatta stating the date of birth of his son as 04.06.2007. This certificate was used by the petitioner for different purposes including the admission of his son in the school. Therefore, in these circumstances, the FIR is not liable to be quashed.
I have considered the rival arguments and carefully gone through the material on record.
It is not disputed that the son of the petitioner was born at Kota on 04.06.2006 and the petitioner already obtained certificate from Medical Officer, Bharat Vikas Parishad on the basis of which the petitioner also entered the date of birth of his son as 04.06.2006 in the service record of Nuclear Power Corporation of India Ltd. Thereafter, the petitioner filed an application alongwith affidavit seeking birth certificate from the Municipal Council, Rawatbhatta mentioning his date of birth as 04.06.2007 which he used for admission of his son in school. The police after investigating the matter thoroughly and obtaining record from the Government hospital, Kota and Municipality, Rawatbhatta came to the conclusion that the prima facie offences stand proved against the petitioner.
Hon'ble Supreme Court in the case of State of Haryana & Ors. Vs. Choudhary Bhajanlal & Ors. : 1992 Suppl. (1) SCC 335], laid down guidelines for exercising inherent powers under Section 482 Cr.P.C. to quash FIR and criminal proceedings. The Court held:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of (Downloaded on 24/10/2019 at 08:49:35 PM) (4 of 11) [CRLMP-2597/2017] the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima- facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(Downloaded on 24/10/2019 at 08:49:35 PM)
(5 of 11) [CRLMP-2597/2017]
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
Yet again, Supreme Court, in case of Janta Dal Vs. H.S. Choudhary : (1992) 4 SCC 305], while relying on Choudhary Bhajanlal's case (supra), held:
"This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate (Downloaded on 24/10/2019 at 08:49:35 PM) (6 of 11) [CRLMP-2597/2017] prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely 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 great 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 the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. This Court in State of Haryana v. Ch. Bhajan Lal and Ors., to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore, think it necessary in the present case to extensively deal with the import and intendment of the powers under Sections 397, 401 and 482 of the Code."
In another decision in the case of Pratibha Vs. Rameshwari Devi & Ors, JT 2007 (11) 122, the Hon'ble Apex Court held that while exercising the extraordinary jurisdiction under Section 482 Cr.P.C., the High Court cannot go beyond the allegations made in the F.I.R or rely upon extraneous consideration. For the purpose of finding out the commission of a cognizable offence, the High Court is only required to look into the allegations made in the complaint or the F.I.R.
In another case of N. Soundaram Vs. P.K. Pounraj & Anr. :
(2014) 10 SCC 616], Supreme Court, while reiterating the principles laid down in Bhajan Lal (supra) on scope of exercise of powers under Section 482 Cr.P.C., held:(Downloaded on 24/10/2019 at 08:49:35 PM)
(7 of 11) [CRLMP-2597/2017] "It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any Court and to secure the ends of justice [See State of Haryana v. Bhajanlal]. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482, CrPC [See MCD v. Ram Kishan Rohtagi]. An investigation should not be shut out at the threshold if the allegations have some substance.
[See Vinod Raghuvanshi v. Ajay Arora]."
On careful reading of the illustrations, I am of the view that the allegations levelled in the F.I.R. are not covered by any of the illustrations as noted hereinabove, wherein the inherent power can be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There are allegations contained in F.I.R. relating to applicable Section 420, 467, 468, 471, 477, 120B I.P.C. against the petitioner which are factual in nature, that cannot be adjudicated in the present petition. It is a case where the power under Section 482 Code of Criminal Procedure cannot be exercised so far allegations relating to Section 420, 467, 468, 471, 477 I.P.C. are concerned.
Learned counsel for the petitioner has placed reliance on the judgment in the case of Prisoners Right Forum (Downloaded on 24/10/2019 at 08:49:35 PM) (8 of 11) [CRLMP-2597/2017] (supra) questioning the locus standi of the complainant to lodge FIR, however, a reading of para 11 of the said judgment would clearly go to show that the Single Judge has categorically observed that the area where the Code of Criminal Procedure does not insist for locus standi is when the law is set in motion and the law can be set in motion even by a rank third party. Para 11 of the said judgment is quoted hereinbelow :-
"11. Can this right which has been extended to a victim, can be further extended to a third party who is not in any way related to the case? The plain and simple answer for this question is "No".
If this practice is permitted in a casual manner, a meddlesome bystander can easily decide to attack a person who has been held to be not guilty by a Subordinate Court, by initiating a frivolous proceeding and thereby cause irretrievable injury to the life and liberty of the accused person. The Only area where the Code of Criminal Procedure does not insist for locus standi is when the law is set in motion. For instance, for an IPC offence, the law can be set in motion even by a rank third party since an information regarding a cognizable offence is enough for the police to register an FIR under Section 154 of Cr.P.C., or for a Magistrate to take cognizance of an offence under Section 190 of Cr.P.C. Even under the Code of Criminal Procedure, while granting right to file an appeal against an acquittal, the legislature thought it fit to circumscribe this right by imposing a condition to seek leave/special leave before entertaining the appeal. The fetters so imposed on the right to appeal is prompted by the (Downloaded on 24/10/2019 at 08:49:35 PM) (9 of 11) [CRLMP-2597/2017] reluctance to expose a person, who has been acquitted/discharged by a competent Court." The Constitution Bench of Supreme Court in A.R. Antulay V/s. Ramdas Sriniwas Nayak & Anr. V/s. [(1984) 2 SCC 500], while examining the concept of locus standi under the criminal jurisprudence made it clear that locus is immaterial and irrelevant unless statute indicates to the contrary. The Court held:-
"It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position such as (i) Section 187-A of Sea Customs Act, 1878 (ii) Section 97 of Gold Control Act, 1968 (iii) Section 6 of Import and Export Control Act, 1947 (iv) Section 271 and Section 279 of the Income Tax Act, 1961 (v) Section 61 of the Foreign Exchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not (Downloaded on 24/10/2019 at 08:49:35 PM) (10 of 11) [CRLMP-2597/2017] prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the CrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force [See Section 2(n) CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception."(Downloaded on 24/10/2019 at 08:49:35 PM)
(11 of 11) [CRLMP-2597/2017] In a later judgment, Supreme Court in case of Manohar Lal V/s. Vinesh Anand & Ors. [(2001) (5) SCC 407] has reiterated the same principle. The Court held:-
"Before adverting to the matter in issue and the rival contentions advanced, one redeeming feature ought to be noticed here pertaining to criminal jurisprudence. To pursue an offender in the event of commission of an offence is to subserve a social need -- society cannot afford to have a criminal escape his liability, since that would bring about a state of social pollution, which is neither desired nor warranted and this is irrespective of the concept of locus -- the doctrine of locus standi is totally foreign to criminal jurisprudence. This observation of ours, however, obtains support from the decision of this Court in A.R. Antulay v. Ramdas Sriniwas Nayak."
In view of above, the argument of learned counsel for the petitioner questioning locus standi of the complainant is bereft of any substance.
In the facts and circumstances of the case so also in the light of the judicial pronouncements of Hon'ble Apex Court, no case for quashing of FIR No. 172/2016 registered at Police Station Rawatbhatta, District Chittorgarh is made out. Hence, this misc. petition is hereby dismissed. Stay petition is also dismissed.
(MANOJ KUMAR GARG),J 190-BJSH/-
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