Rajasthan High Court - Jodhpur
Shri Dan vs State on 1 March, 2011
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
ORDER
SHRI DAN Vs. THE STATE OF RAJASTHAN
S.B. Criminal Revision Petition No.242/1992
under section 397/401 Cr.P.C.
against the order dated
25.07.1992 passed by the
Special Judge, ACD Cases ,
Jodhpur in Cri.Case
No.03/1985.
...............
Date of Order: 01st March, 2011
PRESENT
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI
Mr.P.N.Mohnani] for the petitioner.
Mr.R.K.Charan ]
Ms. Chandra Lekha, Public Prosecutor.
BY THE COURT:
This revision petition is directed against the judgment dated 25.07.1992 passed by the learned Special Judge, ACD Cases , Jodhpur in Cri.Case No.03/1985.
A charge sheet was filed against the petitioner 2 Shridan, under 161 IPC and 5(1) (d) (2) of the Prevention of Corruption Act,1947 in the court of Special Judge, ACD Cases, Jodhpur. Thereafter, an application was filed by the Addl.Public Prosecutor for taking cognizance against the petitioner for offences under section 218 and 467 IPC. Vide order dated 20.01.1987, the learned Judge took cognizance against the petitioner for offences under section 218 and 467 IPC . Against the said order, the petitioner preferred a revision petition before this Court and this Court, vide its order dated 22.08.1990, remanded the case, with the direction to decide the matter afresh, after considering the validity of sanction under section 197 Cr.P.C. for the offence under section 218 and 467 IPC .
The learned Special Judge, vide order dated 20.09.1991 , again decided the matter regarding taking cognizance for the offences under section 218 and 467 IPC against the petitioner and observed that there is no sanction under section 197 Cr.P.C. for offences under section 218 and 467 IPC and, therefore, cognizance cannot be taken against the petitioner for these offences. The learned Judge , thereafter, framed charges against the petitioner for 3 offences under section 161 IPC, section 7 of Prevention of Corruption Act 1988, 5(1)(d),and 5(2) of Prevention of Corruption Act, 1947, 13 (1)(d) and 13 (2) of Prevention of Corruption Act 1988. The Public Prosecutor moved an application on 20.06.1992 for taking cognizance and for framing charge against the petitioner for offences under section 218 and 467 IPC on the basis of subsequent sanction order issued by the competent authority.
The learned Special Judge, vide order dated 25.07.1992 took cognizance and framed charges against the petitioner for offences under section 218 and 467 IPC.
Being aggrieved by the order of the learned Special Judge, ACD Cases, Jodhpur, dated 25.07.1992 the petitioner has preferred this revision petition.
Thus, this is the second round of litigation, challenging the legality of the order dated 25.07.1992 passed by the Special Judge, ACD Cases, Jodhpur for taking cognizance and framing charges under section 218 and 467 IPC against the petitioner. 4
The accusation against the present petitioner had essentially been that on 12.11.1983 at about 05.00 PM he, while working as Station House Officer of the Police Station Kuchaman City, demanded and accepted the bribe of Rs.5,000/- to favour the complainant Khema Ram Jat, in a criminal case under investigation and further in the Rojnamcha on 22.11.1983 at Sl.No.313, made a false report regarding putting Rs.5,000/- in the Police Station, by one Lalit.
The Investigation was conducted by the Dy.Superintendent of Police , Anti Corruption Department, and initially charge sheet was filed against the present petitioner under section 161 IPC and under section 5 (1) (d) / (2) of Prevention of Corruption Act 1947 and under section 162 IPC and section 5(1) of Prevention of Corruption Act 1947.
The learned counsel for the petitioner contended that the learned Special Judge, ACD Cases, erred in taking cognizance and framing charges for offences under section 218 and 467 IPC against the petitioner, as the taking of cognizance without sanction, is 5 barred for the particular offence and once the sanction is given by the competent authority, inspite of the material being within the knowledge of the authority, it did not choose to grant sanction for these offences, it will not be conducive in the interest of justice to revise it after a lapse of 9 years and the prosecution should not have been permitted to alter or revise the sanction after such a long period. Earlier, after thorough and detailed investigation, the investigating officer did not find it proper to file the challan under section 218 and 467 IPC, as there were no allegations on the record to substantiate the allegations of false and forged entry in the Rojnamcha, as such no sanction was obtained for offence under section 218 and 467 IPC, at the time of filing the challan and the fresh sanction for offence under section 218 and 467 IPC has been filed after a lapse of nine years and this sanction cannot be considered for taking cognizance and framing the chargers under section 218 and 467 IPC, as there is no material on record for framing the charges under the above sections.
The learned counsel for the petitioner relied on the following citations in support of his arguments:- 6
1. State of Goa vs. Babu Thomas [2005 Cri.L.J. 4379],
2. Omkar Sharma vs. State of H.P. [2003 Cri.L.J., 1024]
3. State of Punjab vs.Mohammed Iqbal Bhatti [2010 Cri.L.J.1436]
4. Bindyachal Choubey vs. State of Jharkhand [2010 Cri.L.J.,1531] and ,
5.Arvind Kumar Chaturvedi vs. State of Chhattisgarh [2011 Cri.L.J. 276].
The counsel for the petitioner contended that earlier prosecution sanction issued by the Dy.Inspector General of Police, Ajmer and subsequent sanction contains the same facts except para No.4 of the later sanction which states as under :
"मर ध न म ल ग ह क श शदन
थनध र न ददन 12-11-83 थन
च मनस ट र जन मच म कम 313 पर
ए झ$%ठ' ररप ट) इ आश - डल क लसलत
म हन न म व क2 न 3- 3 रप नट
उ - तरफ फ और भ ग ग ज धगरवरद न
7
उठ र थन सट;फ मन धगरव व
धगरवरद न प रक=त रखव । जबक
व सतव म श श द न न 5000/- र. ररशवत B -
र सश मसतग खम र म पप - थ जज म क
धगरवरद न न ह ग दद थ ।"
Except this para No.4, both the sanctions
contains the same words and same language. Even at the time of the earlier sanction, issued by the Dy. Inspector General of Police, the Rojnamcha entry No.313 dated 12.11.1983 of Police Station Kuchaman City, District Nagaur was available with the competent authority but he did not choose to accord the sanction for the prosecution of the present petitioner under section 218 and 467 IPC and after issuing the first sanction order, the subsequent sanction order was accorded mechanically without application of mind and without keeping in mind the provisions of section 464 IPC and the learned trial Judge also ordered to frame the charge without there being any evidence. The counsel for the petitioner contended that subsequent order of sanction was accorded without application of mind and in a mechanical way, therefore, the order of taking cognizance against the petitioner under section 8 218 and 467 IPC and framing of charge under the above section is illegal, perverse, improper and against the provisions of law.
Learned Public Prosecutor defended the impugned order.
The learned trial court vide order dated 25.07.1992 ordered to frame charge against the accused petitioner under section 218 and 467 IPC.
I have perused the provisions of section 464 IPC. There is a distinction between making an incorrect document and making a false document. The entries made in the Rojnamcha having been made by the accused petitioner, alone, he could not be said to have made false document as defined in section 464 IPC.
Assuming that the accused having made incorrect entry in the Rojnamcha, yet the false entries alleged to have been committed by him, does not fall within the language of the relevant section of the IPC. Under section 464 IPC it is essential that the accused person must make the document with the intention of making it to be believed that it was signed by or by the authority of someone else. While he knows that it was not so made or authorised by that person. The 9 intention of the accused petitioner in making the false entry in the Rojnamcha may be punishable with some other offence, but to bring it within the four corners of this section, the false document must be created with a view to make it appear that it was made by some other person, who the accused knows did not make it. To bring a case within clause (1) of Section 464 IPC it is necessary to establish that the accused intended to induce a belief that the document was made, signed, sealed or executed by the authority of a person who did not make , sign, seal or execute it or that it was made , signed , sealed or executed at a time when it was not so done. Making false document is a sine qua non for offence of forgery under section 464 IPC.
I have perused the judgments cited by the learned counsel for the petitioner.
The facts of the case of State of Goa vs. Babu Thomas (supra) are different from the present case, because in that case both the sanction orders were issued without there being authority to accord the sanction and the sanction order also stated that the sanction was accorded retrospectively w.e.f. earlier 10 date than of filing of the charge sheet. In the present case, it is not disputed that the Dy. Inspector General of Police was the competent authority to accord the sanction for prosecution.
In Omkar Sharma's case (supra), the competent authority had earlier declined to accord sanction and later on, on the basis of the same material ,had revised its earlier decision. The later decision according sanction to prosecute the petitioner was considered to be bad.
However, in the case of State of Punjab vs. Mohammed Iqbal Bhatti (supra) , the Hon'ble apex Court held that power to review the earlier order to accord the sanction for prosecution, cannot be exercised on same material.
In the present case also it is not the case of the prosecution that earlier Rojnamcha report at Sl.No.313 was not available with the competent authority and if it was within the knowledge of the competent authority, the later order of the competent authority, according 11 the sanction for prosecution under section 197 Cr.P.C. Can very well be said to be itself a mechanical order without application of mind.
In Bindyachal Choubey' case (supra) , again the question of granting the sanction order after twice refusing it by the same authority, without any fresh material , had been considered to be illegal.
In Arvind Kumar Chaturvedi' case (supra) where on several earlier occasions sanction to prosecute the petitioner was denied and no new document was brought to the notice of the Board, order granting sanction had been quashed.
In the present case, there is sufficient evidence on record that all the relevant documents were produced before the competent authority for obtaining the sanction of the prosecution and the competent authority did not choose to accord the sanction under section 197 of the Cr.P.C. For prosecuting the present petitioner under section 218 and 467 IPC and on the same facts, after considering the relevant documents para No.4 in the sanction order was added, without 12 assigning the reason that earlier this document was not made available to him. Thus, the later order dated 13.04.1992, according the sanction for prosecution under section 218 and 467 IPC, cannot be said to be a legal one which can be said to be issued with due application of mind but it is a mechanical order passed by the competent authority.
In view of the aforementioned discussions, the order of taking cognizance against the accused petitioner under section 218 and 467 IPC and for framing of the charges against the accused petitioner Shridan under section 218 and 467 IPC cannot be sustained and the impugned order of the learned trial court dated 25.07.1992 is illegal , perverse, improper and against the provisions of law, therefore, it is set aside.
Accordingly, this revision petition is allowed, the impugned order of the learned trial court dated 25.07.1992 is set aside.
The learned counsel for the petitioner also drew my attention towards the fact that the accused 13 petitioner has been charged for the offences under the provisions of the Act of 1988 in spite of section 30 of the Prevention of Corruption Act, 1988. No challenge has been made regarding this fact in the revision petition. Therefore, it is for the trial court to decide that under which provisions, the charges are to be framed against the petitioner.
Before parting with the case, I deem it proper to direct the learned trial court to complete the trial of the case within a reasonable time, say, within a year, because the date of the offence is of the year 1983.
(KAILASH CHANDRA JOSHI),J.
l.george