Rajasthan High Court - Jaipur
Smt Kavita Devi W/O Shri Om Prakash B/C ... vs State Of Rajasthan on 9 April, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 1456/2019
Smt Kavita Devi W/o Shri Om Prakash B/c Jat, Aged About 31
Years, R/o Village Rashidpura, Police Station Sadar Sikar, District
Sikar, Raj.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp.
2. Smt. Manju Devi W/o Shri Jai Prakash B/c Jat, Aged
About 27 Years, R/o Village Rashidpura, Police Station
Sadar Sikar, District Sikar, Raj.
----Respondents
For Petitioner(s) : Mr. Gajanand Yadav with Mr. Subhash Sharma For Respondent(s) : Mr. S.S. Mahla PP HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
-/Order/-
Reserved on : 05/03/2019 Pronounced on : 09/04/2019 REPORTABLE
The present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No.92/2015 dated 3.4.2015 registered at Police Station Sadar, Sikar for the offences under Sections 420, 467, 468, 471 and 120B IPC. It is further prayed that all subsequent proceedings which have resulted into pendency of the Criminal Case No.500/2016 in the court of Chief Judicial Magistrate, Sikar titled as Sate of Rajasthan vs. Smt. Kavita Devi be also quashed.
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(2 of 8) [CRLMP-1456/2019]
Briefly stated, Smt. Manju Devi respondent no.2
instituted a criminal complaint against the petitioner and others in the court of Chief Judicial Magistrate Sikar wherein she alleged that the petitioner for contesting election to the post of Sarpanch of Gram Panchayat Rashidpura, Panchayat Samiti Dhod, Sikar and to become eligible, furnished forged transfer certificate depicting therein that she had passed VIII Class examination.
The complainant/respondent no.2 made a grievance that the petitioner in order to become eligible to contest the election relied upon VIII Class transfer certificate which was forged and fabricated document and thus, election of the petitioner for the post of Sarpanch was result of commission of criminal offences punishable under Sections 420, 467, 468 and 471 IPC.
Upon the complaint filed by the respondent no.2, order under Section 156 (3) Cr.P.C. was passed by the court of concerned Magistrate and on the basis thereof, police registered the FIR No.92/2015 at Police Station Sadar, Sikar for the above said offences.
In the present petition seeking quashing of FIR, learned counsel for the petitioner has primarily placed reliance upon the judgment dated 3.11.2017 passed in Smt. Kamla vs. State of Rajasthan, SBCRLMP No. 1164/2016, decided by a co- ordinate Bench at the Principal Seat at Jodhpur.
A perusal of the judgment rendered in the case of Smt. Kamla (supra) reveals that in that case, petitioner Smt. Kamla had furnished a wrong information in the nomination paper by concealing number of children. In the case of Smt. Kamla (supra) (Downloaded on 27/06/2019 at 11:26:08 PM) (3 of 8) [CRLMP-1456/2019] it was specifically noted that regarding furnishing of forged certificate of Vimla wife of Sata Ram a separate FIR was registered. Therefore, so far furnishing of wrong information regarding number of children was concerned, in the case of Smt. Kamla (supra) FIR was quashed.
Learned counsel for the petitioner has placed reliance upon another judgment in the case of Harkeshi Devi vs. State of Rajasthan & Anr., SBCRLMP No.628/2017 decided on 22.2.2017 by the co-ordinate Bench at Principal Seat at Jodhpur.
In the case of Harkeshi Devi (supra) also, it was alleged that Harkeshi Devi had concealed number of children in the nomination paper and thereby made a false declaration. The case of the prosecution in the case of Harkeshi Devi was that she was having three children but this information was not correctly furnished by her in the nomination paper.
Learned counsel for the petitioner has further placed reliance upon another judgment Amita Trivedi & Anr. vs. State of Rajasthan & Anr., 2013(2) RLW 1313 (Raj.). In the case of Amita Trivedi (supra) also, wrong information was furnished by Amita Trivedi and in the column where name of husband was to be given, she had furnished name of her father-in-law. Therefore, in the case of Amita Trivedi, the case of prosecution was that she had furnished a false declaration alongwith nomination form.
Learned counsel for the petitioner has further placed reliance upon Balbir Singh vs. State of Rajasthan, 2016(4) Cr.L.R. (Raj.) 1824. In that case also, no document was fabricated and it was alleged that Balbir Singh furnished wrong information regarding number of children. (Downloaded on 27/06/2019 at 11:26:08 PM)
(4 of 8) [CRLMP-1456/2019] Similarly, in the case of Raxpal Sihag vs. State of Rajasthan & Ors., 2014(1) Cr.L.R. (Raj.) 155, cited by the learned counsel for the petitioner, it was alleged hat Raxpal Sihag had fraudulently managed induction of their names in voters list prepared for the villagers. In that case also no document relied by the petitioner was forged or fabricated.
In another judgment rendered by this Court in Om Prakash Saini vs. State of Rajasthan & Anr., 2014 (1) Cr.L.R. (Raj.) 36. Om Prakash Saini candidate who contested the election had submitted a wrong affidavit regarding declaration of his assets and liabilities.
Thus, all the above judgments relied by the learned counsel for the petitioner are not attracted on the facts of the case. There is mark distinction between furnishing a wrong affidavit, making a false declaration or giving a wrong information in the nomination form, compared to furnishing a false, forged and fabricated document.
In the present case, the petitioner alongwith false declaration regarding his educational qualification had submitted a forged and fabricated transfer certificate. A document forged and fabricated outside the precincts of the court indeed amount to commission of offence regarding forgery and fabrication of documents. If the document is fabricated outside the court premises, police can register a case and try the offences.
This controversy is no longer res integra. A five Judge Bench in Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr., AIR 2005 SC 2119 upheld the ratio of law laid in Sachida Nand Singh & Anr. vs. State of Bihar & Anr., (1998) (Downloaded on 27/06/2019 at 11:26:08 PM) (5 of 8) [CRLMP-1456/2019] 2 SCC 493. The five Judge Bench in Iqbal Singh Marwah (supra) noted ratio of law laid in Sachida Nand Singh (supra) as under:-
In Sachida Nand Singh after analysis of the relevant provisions and noticing a number of earlier decisions (but not Surjit Singh), the Court recorded its conclusions in paragraphs 11, 12 and 23 which are being reproduced below :
"11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.(Emphasis supplied)
12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the court records.(Emphasis supplied)
23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court."
Having noted the ratio of law in case of Sachida Nand Singh (supra), five Judge Bench in Iqbal Singh Marwah (supra) held as under:-
"25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. "(Downloaded on 27/06/2019 at 11:26:08 PM)
(6 of 8) [CRLMP-1456/2019] Thus, it is apparent that bar under Section 195(1)(b)(ii) Cr.P.C. will operate only if the document is forged while in custody of the court. Therefore, five Judge Bench in Iqbal Singh Marwah (supra) held as under:-
26. In the present case, the will has been produced in the Court subsequently. It is nobody's case that any offence as enumerated in 195(1)(b)(ii) was committed in respect to the said will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by 195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference."
The view taken by the Constitutional Bench of Supreme Court in Iqbal Singh Marwah (supra) has also been recently reiterated in the case of Vishnu Chandru Gaonkar vs. N.M. Dessai, (2018) 5 SCC 422, as under:-
"12. A Three Judge Bench of this Court in Sachida Nand Singh & Anr. Vs. State of Bihar & 11 Anr., (1998) 2 SCC 493 had occasion to consider Section 195(1)(b)(ii) and Section 340(1) Cr.P.C. Interpreting Section 195(1)(b)(ii), following was laid down in Paras 8, 11 and 23:-
"8. That apart it is difficult to interpret Section 195(1)(b)
(ii) as containing a bar against initiation of prosecution proceedings merely because the document concerned was produced in a court albeit the act of forgery was perpetrated prior to its production in the Court. Any such construction is likely to ensue unsavoury consequences.
For instance, if rank forgery of a valuable document is detected and the forgerer is sure that he would imminently be embroiled in prosecution proceedings he can simply get that document produced in any long- drawn litigation which was either instituted by himself or somebody else who can be influenced by him and thereby pre-empt the prosecution for the entire long period of pendency of that litigation. It is a settled proposition that if the language of a legislation is capable of more than (Downloaded on 27/06/2019 at 11:26:08 PM) (7 of 8) [CRLMP-1456/2019] one interpretation, the one which is capable of causing mischievous consequences should be averted. Quoting from Gill v. Donald Humberstone & Co. Ltd.5 Maxwell has stated in his treatise (Interpretation of Statutes, 12th Edn., p. 105) that "if the language is capable of more than one interpretation we ought to discard the more natural meaning if it leads to unreasonable result and adopt that interpretation which leads to a reasonably practicable result". The clause which we are now considering contains enough indication to show that the more natural meaning is that which leans in favour of a strict construction, and hence the aforesaid observation is eminently applicable here.
11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.
23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. Accordingly we dismiss this appeal."
13. It is also relevant to note that observations have been made by this Court that forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, the same cannot be treated as one affecting administration of justice. In Para 12, following has been held:-
"12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the court records."
Therefore, in the present case, transfer certificate was forged and fabricated before it was presented before the returning officer alongwith nomination form. It is not a case that the said (Downloaded on 27/06/2019 at 11:26:08 PM) (8 of 8) [CRLMP-1456/2019] document was forged while it was in the custody of court. Therefore, bar under Section 195(1)(b)(ii) Cr.P.C. is not attracted.
The judgments relied by the learned counsel for the petitioner as noted earlier are distinguishable as they only pertain to furnishing a wrong information or false declaration in the nomination form.
Consequently, there is no merit in the present petition and the same is dismissed.
(KANWALJIT SINGH AHLUWALIA),J Mak/-
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