Rajasthan High Court - Jodhpur
Nirmala And Ors vs State And Anr on 13 September, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1981/2017
1. Nirmala W/o Shri Shankar Lal, R/o Ward No. 06,
Nihalpura, Tehsil- Pilibanga, District- Hanumangarh.
2. Shankar Lal S/o Rameshwar Lal, R/o Ward No. 06,
Nihalpura, Tehsil- Pilibanga, District- Hanumangarh.
3. Prem Kumar S/o Shri Rameshwar Lal, R/o Ward No. 06,
Nihalpura, Tehsil- Pilibanga, District- Hanumangarh.
----Petitioners
Versus
1. State Of Rajasthan Through Pp
2. Rai Singh S/o Shri Daya Ram, By Caste Jat, Ward No. 07,
Nihalpura, Tehsil-Pilibanga, District- Hanumangarh.
----Respondents
For Petitioners : Mr. Bhoop Singh
For Respondent(s) : Mr. Vikram Sharma, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment 13/09/2022
1. This Criminal Misc. Petition under Section 482 Cr.P.C. has been preferred with the following prayer:-
"It is, therefore, most humbly and respectfully prayed that this Criminal Misc. Petition may kindly be allowed and the F.I.R. No. 355/2017 registered at Police Station Pilibanga, Pilibanga, Hanumangarh and further proceedings pursuant thereof, may kindly be quashed and set-aside.
Any other appropriate relief, which this Hon'ble Court deems just and proper in favour of the petitioner, may kindly be passed."
2. Brief facts of the case as placed before this Court by learned counsel for the petitioners are that on the basis of a complaint made before the learned Judicial Magistrate, Pilibanga by the (Downloaded on 15/09/2022 at 09:19:02 PM) (2 of 10) [CRLMP-1981/2017] complainant-respondent no. 2, Rai Singh, an F.I.R. bearing No. 0335/2017 was registered at Police Station, Pilibanga. It was averred therein that on 01.02.2015, an election was conducted for the post of Sarpanch in Gram Panchayat, Pilibanga; for which, candidates were to submit their forms before the election officer, and that as per the law, a person having more than 2 children would ipso facto be disqualified from contesting the said election; for establishing the qualification/eligibility to contest the election, an affidavit with respect to the same, along with the election forms, must also be filed. However, that the complainant- respondent no. 2, being a voter and R/o Nihalpura village, entered a war of words with the accused-petitioner no. 2, Shankar Lal, at a camp organized in the village on 18.05.2017 wherein the said accused allegedly stated that his wife contested a ward election and won the seat, despite having three children. It was further averred therein, that the complainant secured relevant copies of the election form, affidavit and other documents through the Right to Information Act, 2005 whereby it is clear that the accused- petitioner No.1 has only two children, and a concealment was made by her in the said documents.
3. Learned counsel for the petitioners submitted that the complaint is baseless and is wrong on the facts, and the accused petitioners no.1 and 2 in fact only have two biological children, namely Reeta and Nisha, and that the third child, Maya, is their niece who is under their care. And that the same is verifiable from the ration card and school certificates of their niece, which reveal that her father is Mr. Prithvi Raj.
3.1. Learned counsel further submitted that the name of the niece was incorrectly added to the family ration card of the (Downloaded on 15/09/2022 at 09:19:02 PM) (3 of 10) [CRLMP-1981/2017] petitioners no. 1 and 2, and that a correction application for the same was also duly filed.
3.2. Learned counsel also submitted that, owing to the above made submissions, the complaint so filed by the complainant- respondent no. 2 is therefore baseless, and thus in the interest of the justice, seeks the indulgence of this Court to the quash the F.I.R. in question.
3.3. Learned counsel relied upon the following judgments :
(a) Narayan Lal Vs. State of Rajasthan & Anr. (S.B. Criminal Misc.
Petition No.1259/2016, decided by this Court on 17.04.2017;
(b) Amita Trivedi & Anr. Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No.2763/2011, decided on 30.07.2012);
(c) Chokha Ram Vs. State of Rajasthan & Ors. (S.B. Criminal Misc. Petition No.250/2016;
(d) Rewant Ram Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.1120/2016, decided by a coordinate Bench of this Hon'ble Court on 31.05.2016).
4. On the other hand, learned Public Prosecutor opposes the aforesaid submissions made on behalf of the petitioner and submitted that as per the latest factual report, the accused- petitioner no. 2, Shankar Lal, has not submitted the ration card before the concerned police authorities, despite intimations for the same over phone calls, and notice under Section 41A Cr.P.C., for the same being served upon him. And thus, the averment so made by the learned counsel for the petitioners to that extent, could not be verified by the concerned police authorities.
5. Learned Public Prosecutor further submits that the said accused, Shankar Lal deliberately is seeking non-production of his (Downloaded on 15/09/2022 at 09:19:02 PM) (4 of 10) [CRLMP-1981/2017] ration card for inspection, and thus, seeks to obstruct the proceedings initiated against him, and the other accused.
6. Learned Public Prosecutor also submits that the accused petitioners have not been arrested, in view of the interim order passed by this Court on 03.07.2017. However, as per the latest factual report, the charges levelled against the present petitioners, for the offences under Sections 420, 193, 120B I.P.C. are found to be made out and therefore, the F.I.R. in question ought not to be quashed.
7. The factual report, as produced before this Court by the learned Public Prosecutor is taken on the record.
8. Heard learned counsel for the parties as well as perused the record of the case, along with the judgments cited at the Bar.
9. A coordinate Bench of this Hon'ble Court rendered the following judgment in the case of Prithvi Singh Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No.661/2016, decided on 31.05.2016) :
"This Criminal Misc. Petition under section 482 CrPC has been filed by the petitioner with a prayer for quashing of the FIR No.30/2015 lodged at Police Station, Sheo, District Barmer for the offences punishable under sections 420, 192 IPC.
The impugned FIR has been lodged on the basis of a complaint filed by the complainant mainly with the allegation that the petitioner while contesting election for the post of Sarpanch of Gram Panchayat, Dharvi Kalla in the General Election, 2015, submitted false declaration regarding his children in the nomination form. It is also contended that as per the provisions of Rajasthan Panchayati Raj Act, any person having more than two children after 27.11.1995 is not qualified to contest the election for the post of Member or Chairperson of a Panchayati Raj Institution and the petitioner was having more than two children after 27.11.1995, but with the intention to make him eligible to contest election made false declaration about number of his children and their date of birth, therefore, he has committed the offence of (Downloaded on 15/09/2022 at 09:19:02 PM) (5 of 10) [CRLMP-1981/2017] cheating and forgery.
The challenge to the impugned FIR is made by the petitioner mainly on the ground that from bare reading of the allegations contained in the impugned FIR, no case for commission of cognizable offence is made out and even if the allegations contained in the impugned FIR are taken as it is, then also the only offence, which can be made out against the petitioner is of furnishing false information/evidence before a public servant. It is contended that the offence of furnishing false information/evidence while contesting election is a non- cognizable offence and, therefore, as per sub-section (2) of section 155 CrPC, the police has no jurisdiction to investigate into the noncognizable offences without there being any order from the Magistrate concerned and as such the impugned FIR registered against the petitioner is liable to be quashed and set aside.
Per contra, the learned Public Prosecutor opposed the prayer of the petitioner while contending that since the allegations contained in the impugned FIR constitute an offence, the impugned FIR cannot be quashed.
Heard learned counsels for the rival parties and perused the impugned FIR.
The cheating is defined in section 415 of the Indian Penal Code, which reads as under:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
For the offence of cheating, there should be an averment in the complaint that the accused by using fraudulent means induces a person so cheated to deliver some valuable security etc. From bare reading of the impugned FIR, it is clear that there is no averment to the effect that the accused by using fraudulent means induces the complainant or any person so cheated to deliver some valuable security etc. Hence, the offence punishable under section 420IPC cannot be said to be made out from allegations contained in the impugned FIR.
It is noticed that in the impugned FIR, there is no allegation to the effect that the petitioner has prepared a false document and used it as a genuine one. The main (Downloaded on 15/09/2022 at 09:19:02 PM) (6 of 10) [CRLMP-1981/2017] allegation in the impugned FIR against the accused is to the effect that he has furnished false declaration regarding his children in the nomination form and on the basis of which, he has contested the election though he was not qualified to do so. Furnishing false information before a public servant cannot be equated with the execution of a false document. If what is executed is not a false document, there is no forgery and if there is no forgery, then no offence under the provisions of sections under sections 420, 467, 468, 471 IPC is made out.
The Hon'ble Supreme Court in State of Haryana & Ors. vs. Bhajan Lal & Ors., 1992 SCC (Cri) 42 has held as under:
"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 the extra- ordinary 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 F.I.R. 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 F.I.R. 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 15/09/2022 at 09:19:02 PM)
(7 of 10) [CRLMP-1981/2017] (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."
In the above referred judgment, the Hon'ble Supreme Court in sub paras (2) and (4) of para No.102 has held that where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code, then the FIR can be quashed.
Upon perusal of the impugned FIR, it is apparent that the main allegation of the complainant in the impugned FIR is to the effect that the accused-person has furnished false information or has not furnished correct information regarding his children while contesting the election. If the said allegations of the complainant are accepted to be true then too, the offence, which at best can be said to be committed by the accused would be of making statement in connection with an election which is punishable under section 171-G IPC or furnishing false information to any public servant punishable under section 177 IPC or the offences punishable under sections 181, 193, 199 and 200 IPC. However, all the above mentioned offences are non- cognizable offences. As per the provisions of sub-section (2) of section 155 CrPC, a Police Officer cannot investigate into the allegations of non-cognizable offence without any order of the Magistrate having power to try such case or commit the case for trial, however, no such order of the Magistrate concerned is available on record.
In view of the above discussions, this Court is of the opinion that the impugned FIR is liable to be quashed.
Consequently, the instant criminal misc. petition is allowed and the impugned FIR No.30/2015 lodged at Police Station, Sheo, District Barmer is quashed. However, it will be open for the complainant or the officer, before whom (Downloaded on 15/09/2022 at 09:19:02 PM) (8 of 10) [CRLMP-1981/2017] any false information or evidence is furnished by the accused persons, to avail appropriate remedy as provided under the law.
Stay petition stands disposed of."
10. From a bare reading of the impugned FIR, it is clear that there is no averment to the effect that the accused by using fraudulent means induced the complainant or any person so cheated to deliver some valuable security etc. Hence, the offence punishable under section 420 IPC cannot be said to be made out from the impugned FIR.
11. It is noticed that in the impugned FIR, there is no allegation to the effect that the petitioner has prepared a false document and used it as a genuine one. The main allegation in the impugned FIR against the accused is to the effect that a false declaration regarding children in the nomination form has been furnished and on the basis of which, petitioner No.2 has contested the election though she was not qualified to do so. Furnishing false information before a public servant cannot be equated with the execution of a false document. If what is executed is not a false document, there is no forgery, and in absence whereof, no offence under the provisions of Section 420 IPC can be made out.
12. Further, Section 193 IPC deals with furnishing of false evidence in the course of a judicial proceeding, but in the present case, the matter to alleged furnishing of incorrect declaration/information regarding children for the purpose of contesting election, and therefore, the said provision of the IPC is not attracted in the present case.
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13. Upon a further perusal of the impugned FIR, it is apparent that the main allegation of the complainant in the FIR is to the effect that the accused-person has furnished false information / has not furnished correct information regarding children while contesting the election. If the said allegations of the complainant are accepted to be true, then also, the offence, which at best can be said to be committed by the accused would be of making statement in connection with an election which is punishable under Section 171-G IPC or furnishing false information to any public servant punishable under section 177 IPC or the offences punishable under sections 181, 193, 199 and 200 IPC. However, all the above mentioned offences are non- cognizable offences. As per the provisions of sub-section (2) of section 155 CrPC, a Police Officer cannot investigate into the allegations of non-cognizable offence without any order of the Magistrate having power to try such case or commit the case for trial, however, no such order of the Magistrate concerned is available on record.
14. In view of the above, and keeping in view the fact that the learned Public Prosecutor could not refute the applicability of the aforequoted judgment rendered in Prithvi Singh (supra), this Court is of the opinion that the present petition deserves to be allowed, in terms of the said judgment.
15. The present is accordingly allowed, and the impugned FIR No.335/2017 registered at Police Station, Pilibanga, District Hanumangarh for the offences under Sections 420, 191, 193, 200 (Downloaded on 15/09/2022 at 09:19:02 PM) (10 of 10) [CRLMP-1981/2017] & 120-B IPC is hereby quashed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
45-Skant/-
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