Orissa High Court
Haladhara Karji vs Dileswar Subudhi on 30 August, 1988
Equivalent citations: 1989CRILJ629
Author: G.B. Patnaik
Bench: G.B. Patnaik
ORDER G.B. Patnaik, J.
1. The petitioner is the accused in Complaint Case No. 1 of 1987 pending before the Sub-Divisional Judicial Magistrate, Parlakhemundi and has invoked the inherent jurisdiction of this Court for quashing the order of cognizance taken by the Magistrate under Sections 197, 417 read with Section 511 of the Indian Penal Code by his order dated 23-2-87. The Complainant-opposite party filed a . complaint alleging therein that the petitioner is the local M.L.A. and he was authorised by the State Government to issue caste certificates certifying the students of Scheduled Tribes and Scheduled Castes for receiving pre-matric scholarships. During the academic session 1986-87 applications were invited from the Scheduled Tribe, and Scheduled Caste candidates for gram of such pre-matric scholarships and in the meeting held on 30-11-86 when the applications were scrutinsed, it was found that the accused-petitioner had given certificates to some of the applicants without indicating the castes or tribe of the respective students. The Committee, therefore, rejected those applications. It is the further allegation of the complainant that the accused attempted to deceive the Government and tried to induce the committee to disburse the pre-matric scholarships to the Scheduled tribe and Scheduled caste candidates and thereby committed the offence under Section 417/511, I. P.C. Further by issuance of such certificate, the accused committed the offence under Section 197, I.P.C.
2. The learned Magistrate on receiving the complaint on 5-1-87, posted the matter to 8-1-87 for recording of the initial statement of the complainant and the initial statement of the complainant was recorded on 8-1-87. Thereafter the Magistrate decided to hold an enquiry under Section 202, Cr. P.C. In the said enquiry, one witness was examined. Ultimately by order dated 23-2-87, the learned Magistrate after perusing the initial statement of the complainant as well as the statement of the witness recorded under Section 202, Cr. P.C. came to the conclusion that there were sufficient grounds to proceed against the accused under Sections 197 and 417 read with Section 511, I.P.C. and accordingly took cognizance under those sections and summoned the accused to appear before him. It is this order of taking cognisance which is being assailed in the present application.
3. Mr. Panda, the learned Counsel for the petitioner contends that in order to attract Section 197 of the India Penal Code, the certificates in question must be required by any law to be given and the person who issued the certificates has issued the same knowing or believing the same to be false in any material point. The expression "required by law" refers to some statutory requirements and there being no statutory requirement requiring the M.L.A. to issue certificates in question, Section 197, I.P.C. cannot have any application. The learned Counsel further contends that the entire materials on record as well as the ultimate conclusion of the learned Magistrate only establish one fact that the accused issued those certificates without specifying the caste or tribe to which they belonged. That by itself does not warrant the conclusion that the certificates are false in any material point and the accused issued the same knowing or believing them to be false and, therefore, Section 197, I.P.C. is not at all attracted. I find sufficient force in the aforesaid contention of the learned Counsel for the petitioner. Section 197 of the Indian Penal Code came up for consideration in one of the earliest decisions of the Calcutta High Court in the case of Girendra Nath Chatteries v. Umananda Mukherjee AIR 1926 Cal 258 : 1926 (27) Cri LJ 182. In that case a certificate issued under Rule 18 of the Post Office Saving Bank Rules was under consideration. It was held by their Lordships that the certificate contemplated by Section 197 is a certificate which is required by law to be given or signed for the purpose of being used in evidence in the course of administration of justice. The certificate given under Post Office Savings Bank Rules cannot be construed to be a certificate either under any statute or any statutory rules made thereunder and therefore, to such a certificate, Section 197, I.P.C. cannot be attracted. The matter again came up for consideration before the-Calcutta High Court in the case of Prafulla Kumar v. Emperor AIR 1943 Cal 40 : 1943 (44) Cri LJ 292 whereunder a medical certificate came up for consideration. It was held by the Court that what Section 197 contemplates is that the certificate should be under some provision of law and be admissible in evidence as such certificate without further proof. A medical certificate is not per se evidence of the illness of a person certified to be ill therein and such a medical certificate, therefore, is not a certificate relating to any fact of which such certificate is by law admissible in evidence. The issuing and user of a medical certificate in a criminal proceeding stating contrary to the fact that the accused was ill would render neither the accused nor the issuer of the certificate liable under Section 197 of the Indian Penal Code. In a Bench decision of this Court in the case of Dasarathi Sarangi v. State of Orissa (1987) 1 Orissa LR 263, the certificate issued by the M.L.A. indicating the caste or tribe of the person was considered for the purpose of finding out its admissibility and collusiveness in a proceeding under Regulation 2 of 1956. It was held by their Lordships ;
Opposite party No. 4 produced a caste certificate and the original authority as well as the appellate authority have determined the question on the basis of the caste certificate. The caste certificate under no provision of law was conclusive evidence of the fact whether opposite party No. 4 belonged to Scheduled Tribe. The question has to be decided by the authorities on the materials on record before them.
In view of the aforesaid pronouncement of a Bench decision of this Court as well as the law laid down by the Calcutta High Court referred to supra, a caste certificate issued by the M.L.A. for the purpose of enabling the students to obtain pre-matric scholarships cannot be held to be certificates within the meaning of Section 197 of the Indian Penal Code, and, therefore, the first contention of Mr. Panda must be sustained.
4. Even otherwise, the evidence of the complainant as well as the materials on record only establish the fact that the accused issued the certificates without specifying the caste or tribe of the applicants. That by itself would not lead to the conclusion that the certificates were issued falsely at any material point knowing or believing that the certificates are false. There is no material on record for coming to a conclusion that the certificates issued were at all false. On the other hand, what is established from the materials is that the certificates did not fulfil the requirements of the form, namely, the mention of particular caste of the applicants. At the most, it may amount to an omission on the part of the accused which may disentitle the students from getting the scholarships. But in my opinion that would not constitute an offence under Section 197, I.P.C. In this view of the matter, the order of cognizance taken against the petitioner under Section 197, I.P.C. cannot be sustained and this Court would be fully justified in quashing the order of cognisance, as otherwise it would amount to abuse of the process of Court and would cause gross miscarriage of justice.
5. Coming now to the other offence namely Section 417 read with Section 511, I.P.C. the conclusion of Mr. Panda, the learned Counsel for the petitioner is that the statement of the complainant taken on oath as well as the evidence of the witnesses recorded under Section 202, Cr. P.C. enquiry does not establish the offence either under Section 417, I.P.C. or even abatement of the same. In that view of the matter, the said cognisance also is bad in law. At the stage of taking cognisance, a Magistrate can only act on the materials expressly provided under Section 203 of the Code, namely, the statement of oath (if any) of the complainant and his witnesses, and the result of any investigation or enquiry under Section 202, Cr. P.C. If the Magistrate considers anything outside these matters, then the order is bad and the same must be discarded. It is undoubtedly true that at this stage the Court cannot assess the intrinsic worth of the evidence and has to take the evidence on its face value and then consider whether a prima facie case is established or not. It is also true that the inherent jurisdiction' of the court should be sparingly exercised and in exceptional circumstances when there is reason to believe that the process of law is being misused to harass a citizen. If all the materials on record do not prima facie establish the offence in question this Court invokes its inherent jurisdiction and quash the order of cognizance as otherwise it would amount to abuse of process of law. After examining the statement of the complainant as well as the evidence of the witnesses on behalf of the complainant recorded under Section 202 Cr. P.C., I am satisfied that no prima facie case is established even under Section 417 read with Section 511 of the Indian Penal Code. Consequently the order of cognisance on that score also cannot be sustained.
6. In the result, therefore, 1 would quash the order of cognisance dated 23-2-87 and quash the criminal proceeding. This criminal miscellaneous application is accordingly allowed.