Madhya Pradesh High Court
Laxmi Mathur vs The State Of Madhya Pradesh on 8 September, 2020
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
The High Court of Madhya Pradesh
Misc. Cri. Case No.874/2016
(Laxmi Mathur vs. State of MP & Another)
&
Criminal Revision No.3139/2017
(Laxmi Mathur vs. State of MP & Another)
1
Gwalior, dated 08.09.2020
Shri Arun Dudawat, learned counsel for petitioner-Laxmi
Mathur in Misc. Cri. Case No. 874/2016 & Cri. Revision
No.3139/2017.
Shri Girraj Soni, learned Panel Lawyer for the State.
Shri R.B.S.Tomar, learned counsel for the respondent No.2-
Chief Executive Officer, Janpad Panchayat, Pohri in Misc. Cri. Case No. 874/2016.
Shri Navnidhi Padhariya, learned counsel for the complainant-Lokendra Singh Vashistha.
Matter is heard through video conferencing. This order shall govern the disposal of both Misc. Cri. Case No.874/2016 and Criminal Revision No. 3139/2017, as both the cases have been filed by the same petitioner in connection with same Crime No. 297/2012 registered at Police Station Pohri, District Shivpuri.
2. Misc. Cri. Case No. 874/2016 has been preferred under Section 482 of CrPC, assailing the order dated 4.1.2016 passed in Criminal Case No. 172/2013 by Judicial Magistrate First Class, Pohri, District Shivpuri, whereby the application filed by the petitioner under Section 239 of CrPC for his discharge in connection with Crime No. 297/2012, registered at Police Station Pohri, District Shivpuri, has been rejected.
3. Criminal Revision No. 3139/2017 takes exception to the order dated 08.08.2017 passed in Sessions Trial No. 5000103/2016 by Second Additional Sessions Judge, District Shivpuri (M.P.), which led to framing of charges against the present The High Court of Madhya Pradesh Misc. Cri. Case No.874/2016 (Laxmi Mathur vs. State of MP & Another) & Criminal Revision No.3139/2017 (Laxmi Mathur vs. State of MP & Another) 2 petitioner for commission of offences punishable under Sections 420, 474 of IPC in connection with Crime No. 297/2012, registered at Police Station Pohri, District Shivpuri.
4. The common facts in both the cases are that petitioner
- Laxmi Mathur got married with Vivek Shrivastava S/o Ram Krishan Shrivastava. Subsequently, their marriage was dissolved and decree of divorce was granted by the competent Court. Father of the petitioner's husband namely Ram Krishan Shrivastava being annoyed with the present petitioner, with an intention to blackmail and harass her, has made false and concocted complaint against the petitioner regarding submission of forged mark sheet by her for securing appointment on the post of Samvida Shala Shikshak Grade-II in Janpad Panchayat, Pohri District Shivpuri. It is alleged that aforesaid mark sheet has been issued by Bheem Rao Ambedkar Vishwavidyalaya, Mujjafar Nagar, Bihar for B.A. Degree Course. It is further alleged that on the basis of forged mark sheet, which was said to be issued by the aforesaid Vishwavidyalaya, the petitioner was appointed in the year 2003. Thereafter, in July-August 2008 the petitioner resigned from service.
5. It is submitted by learned counsel for the petitioner that the FIR has been lodged against the petitioner only on the basis of photocopy of so-called mark sheet of BA Degree Course and no original mark sheet was available in the record of Janpad Panchayat, Pohri while the Chief Executive Officer, Janpad Panchayat Pohri and SDO (P) Pohri, holding discreet enquiry, found that no case for the alleged offence is made out against the petitioner, in spite of that under political pressure false case has The High Court of Madhya Pradesh Misc. Cri. Case No.874/2016 (Laxmi Mathur vs. State of MP & Another) & Criminal Revision No.3139/2017 (Laxmi Mathur vs. State of MP & Another) 3 been registered against the petitioner at Crime No. 297/2012 in Police Station Pohri, District Shivpuri for the offences punishable under Sections 420 and 474 of IPC. Learned counsel for the petitioner submitted that since neither any forged mark sheet was used by the petitioner nor it was produced by her for securing appointment, therefore, no case is made out against her. It is lastly submitted that only on the basis of photocopy of any document no case can be registered. On these premises, learned counsel for the petitioner prays for discharge of the petitioner from the aforesaid alleged offences.
6. Per Contra, Shri RBS Tomar learned counsel appearing for Chief Executive Officer, Janpad Panchayat, Pohri as well as Shri Navnidhi Padhariya, learned counsel appearing for the complainant in the present case, have opposed the submissions of learned counsel for the petitioner and have submitted that the trial Court has rightly taken the cognizance in the case as the petitioner had used forged mark sheet, which has been confirmed by the concerned University. The petitioner has illegally served for around five years and got salary benefits etc. and, therefore, she is liable to be dealt with suitably.
7. Heard learned counsel for the rival parties and perused the available record.
8. This Court in the case of Colgate Palmolive India Ltd. vs. Satish Rohra, 2005 (4) MPLJ 380, has held in the following manner:-
"6. I have heard the learned Counsel of both the parties and carefully perused the evidence and the material on record. Before The High Court of Madhya Pradesh Misc. Cri. Case No.874/2016 (Laxmi Mathur vs. State of MP & Another) & Criminal Revision No.3139/2017 (Laxmi Mathur vs. State of MP & Another) 4 considering the evidence and the material on record for the limited purpose of finding out whether a prima facie case for issuance of process has been made out or not, it may be mentioned at the very outset that the various documents and the reports filed by the petitioners/Company along with the petition can not be looked into at the stage of taking cognizance or at the stage of framing of the charge. The question whether prima facie case is made out or not has to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. No provision in the Code of Criminal Procedure grants to the accused any right to file any material or document at the stage of taking cognizance or even at the stage of framing of the charge in order to thwart it. That right is granted only at the stage of trial. At this preliminary stage the material produced by the complainant alone is to be considered."
9. The question is whether at this stage this Court can examine the documents and conduct a mini trial simultaneously. This aspect is no more res integra. The Apex Court in (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander), has held that where the factual foundation for an offence has been laid, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. In the said case, the Apex Court laid down the relevant parameters, on the strength of which interference under Section 482 CrPC can be made. The said principles are as under:-
The High Court of Madhya Pradesh Misc. Cri. Case No.874/2016 (Laxmi Mathur vs. State of MP & Another) & Criminal Revision No.3139/2017 (Laxmi Mathur vs. State of MP & Another) 5 "1. Though there are no limits of the powers of the Court under Section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
2. The court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not.
If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
5. Where there is an express legal bar enacted in any of the provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
7. The process of the Court cannot be permitted to The High Court of Madhya Pradesh Misc. Cri. Case No.874/2016 (Laxmi Mathur vs. State of MP & Another) & Criminal Revision No.3139/2017 (Laxmi Mathur vs. State of MP & Another) 6 be used for an oblique or ultimate/ulterior purpose.
8. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction.
9. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
10. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
11. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating The High Court of Madhya Pradesh Misc. Cri. Case No.874/2016 (Laxmi Mathur vs. State of MP & Another) & Criminal Revision No.3139/2017 (Laxmi Mathur vs. State of MP & Another) 7 agencies to find out whether it is a case of acquittal or conviction.
12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The court has to consider the record and documents annexed with by the prosecution.
13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
14. Where the charge-sheet, report under Section 173(2)CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
15. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist."
10. As per the provision of law which flows from paras 11 and 13 of the judgment in Amit Kapoor (supra), it is clear that at the stage, at which the present case is, the court should not examine the facts, evidence and material on record to determine whether there is sufficient material, which may end in a conviction. The court is only concerned with the allegations taken as a whole whether they will constitute an offence. Similarly, under section The High Court of Madhya Pradesh Misc. Cri. Case No.874/2016 (Laxmi Mathur vs. State of MP & Another) & Criminal Revision No.3139/2017 (Laxmi Mathur vs. State of MP & Another) 8 482 CrPC the court cannot take into consideration external materials given by an accused for arriving to a conclusion that no offence was disclosed or there was possibility of her acquittal. The trial Court is best suited to examine the defence documents at appropriate stage. The defence taken by the petitioner is matter of evidence which is required to be proved during trial.
11. In view of the aforesaid discussion, looking to the offences charged against the petitioner, I am of the considered view that no ground is made out for setting aside the order dated 04.01.2016 impugned in the present petition under Section 482 of CrPC.
12. Accordingly, Misc. Cri. Case No. 874/2016 sans substance and is hereby dismissed.
13. So far as Criminal Revision No. 3139/2017 is concerned, this criminal revision has been preferred under Section 397 read with Section 401 of Cr.P.C. The Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has laid down the following proposition:
"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207-A omitted have already been noticed. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the The High Court of Madhya Pradesh Misc. Cri. Case No.874/2016 (Laxmi Mathur vs. State of MP & Another) & Criminal Revision No.3139/2017 (Laxmi Mathur vs. State of MP & Another) 9 contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression "hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
14. Thus, the scope of consideration at the stage of framing of charges is very limited. This has also been laid down by the Hon'ble Supreme Court in case of Chitresh Kumar chopra Vs. State (Government of NCT of Delhi), (2009) 16 SCC 605, in following terms:
The High Court of Madhya Pradesh Misc. Cri. Case No.874/2016 (Laxmi Mathur vs. State of MP & Another) & Criminal Revision No.3139/2017 (Laxmi Mathur vs. State of MP & Another) 10 "25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See: Niranjan Singh Karam Singh Punjabi V. Jitendra Bhimraj Bijjaya).
26. In Som Nath Thapa, a three-
Judge Bench of this Court explained the meaning of the word "presume".
Referring to dictionary meanings of the said word, the Court observed thus:
"32...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage".
The High Court of Madhya Pradesh Misc. Cri. Case No.874/2016 (Laxmi Mathur vs. State of MP & Another) & Criminal Revision No.3139/2017 (Laxmi Mathur vs. State of MP & Another) 11
15. The reproduced excerpt of the judgment of the Hon'ble Apex Court leaves no iota of doubt that the contentions made by the petitioner are yet to be established before the trial court which can only be done while leading evidence and thus, no scope is available with this Court to show any indulgence in the facts of the present case. from perusal of record it is evident that the trial is pending before the trial Court. It is also apparent that the petitioner had served as contract based teacher for around five years from July 2003 till 2008 and she has not denied that she has not received service benefits. Therefore, the fact of registration of FIR only on the basis of photocopy of marksheet cannot be considered without recording of evidence. While recording this opinion, this court is not expressing any view on the merits of the case and the contents raised before this court will be available to the petitioner at the stage of trial.
16. Taking this view of the matter, the instant C riminal Revision No.3139/2017 is hereby dismissed being devoid of merits.
(Rajeev Kumar Shrivastava)
(yog) Judge
SMT VALSALA
VASUDEVAN
2020.09.15
14:31:54
+05'30'