Allahabad High Court
Mohammad Azam Khan And 2 Others vs State Of U.P. And 2 Others on 7 February, 2020
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 76 Case :- APPLICATION U/S 482 No. - 39535 of 2019 Applicant :- Mohammad Azam Khan And 2 Others Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Saiful Islam Siddiqui,Tahira Kazmi Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. This application under Section 482 Cr.P.C. has been filed to quash the charge-sheet dated 1st April, 2019, cognizance taking order dated 19th August, 2019, summoning order dated 19th August, 2019 as well as entire proceedings of Criminal Case No. 1453 of 2019 (State Vs. Mohd. Azam Khan & Others) under Sections 420, 467, 468 and 471 I.P.C., arising out of Case Crime No. 04 of 2019, Police Station-Ganj, District-Rampur pending in the Court of Additional Chief Judicial Magistrate, Court No.3, Rampur.
2. Perused the material available on record.
3. I have heard Mr. Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Mr. Saiful Islam Siddiqui, Mr. S. Safdar Ali Kazmi and Mrs. Tahira Kazmi, learned counsel appearing for the applicants and Mr. Ratnendu Kumar Singh and Mr. Amit Singh Chauhan, learned Additional Government Advocates for the State.
4. The facts, as borne out from the records of the present application under Section 482 Cr.P.C., which are relevant for deciding the present application, are as follows:
One Mr. Akash Saxena, who is alleged to be Regional Convener has made an application before the Station House Officer, Police Station-Ganj, District-Rampur under Section 154 Cr.P.C. for lodging of first information report on 3rd January, 2019 at 12:22 hrs. against Mohd. Azam Khan, Smt. Danjin Fatima/Tanjim Fatma, which has been registered on the same day i.e. 3rd January, 2019 at 13:10 hrs. as Case Crime No. 0004 of 2019, under Sections 471, 468, 467, 420 and 193 I.P.C., Police Station-Ganj, District-Rampur. In the said first information report, it has been alleged that Mohd. Azam Khan son of late Mumtaz Khan and Smt. Tanzim Fatima, wife of Mohd. Azam Khan by creating a code and plotting a well-planned conspiracy, for personal interest, had got issued two date of birth certificates of their son, namely, Abdullah Azam Khan, son of Mohd. Azam Khan, resident of Gher Meer Baaj Kha, Jail Road, Rampur of two different districts. The date of birth certificate dated 28th June, 2012 had been got issued from Nagar Palika Parishad, Rampur bearing Registration No. RNPB2012-03857, which has been registered on the basis of affidavit given by Mohd. Azam Khan and Smt. Tanzim Fatima. In the said date of birth certificate, the place of birth has been shown as "Rampur". The second date of birth certificate dated 21st January, 2015 bearing Registration No. NNLK0-B-2015-29261, had been got issued from Nagar Nigam, Lucknow, which has been registered on the basis of duplicate date of birth certificate, serial no. 718 dated 21st April, 2015 issued by Queen Mery Hospital, Lucknow. In the said date of birth certificate, the place of birth has been shown as "Lucknow". It has further been alleged that Mohd. Abdullah Azam Khan had visited foreign countries by illegally using the date of birth certificate issued by Nagar Palika Parishad, Rampur. He had obtained government documents by using second date of birth certificate issued by Nagar Nigam, Lucknow. He had also used the same at various places. The aforesaid two date of birth certificates of Mohd. Abdullah Azam Khan had been got issued by Mohd. Azam Khan and Smt. Tanzim Fatima by creating a code and plotting a well-planned conspiracy, for personal benefit and the same had been used, for which the present first information report has been lodged.
5. The issue of two different date of birth certificates of Mohd. Abdullah Azam Khan was also up for consideration by means of Election Petition No. 08 of 2017 (Nawab Kazim Ali khan Vs. Mohammad Abdullah Azam Khan). The said election petition has been allowed by a Coordinate Bench of this Court vide judgment and order dated 16th December, 2019 and election of Mohd. Abdullah Azam Khan has been declared void. The said judgment and order of the Coordinate Bench has been challenged by Mohammad Abdullah Azam Khan before the Apex Court by means of Civil Appeal No(s). 104 of 2020, wherein the Apex Court vide order dated 17th January, 2020 has called for counter affidavit. A copy of the judgment and order dated 16th December, 2019 and order dated 17th January, 2020 have been brought on record by means of supplementary affidavit filed today, which is taken on record.
6. For quashing of the aforesaid first information report, the applicants have approached this Court by means of Criminal Misc. Writ Petition No. 11979 of 2019 (Mohammad Azam Khan & Others VS. State of U.P. & Others). The Writ Court, on the request of learned A.G.A., has called for counter affidavit vide order dated 14th May, 2019 and the same is still pending before the Writ Court.
7. After registration of the aforesaid first information report, the Investigating Officer has recorded statements of following witnesses:
1. Akash Saxena, Regional Convener/first informant,
2. Tejpal Verma, Deputy Registrar,
3. Mohd. Naseem, Passport Officer,
4. Vijay Kumar, Income Tax Officer,
5. Rai Singh, Chief Assistant,
6. Saleem, Record Keeper
7. Sudheer Kumar Singh, Principal,
8. Head Constable Police-15, Rishipal, Giri
9. Sub-Inspector, Kishor Mishra, and
10. Station House Officer, Narendra Tyagi.
8. After completing statutory investigation under Chapter XII Cr.P.C., the Police has submitted the charge-sheet against the applicants under Sections 420, 467, 468 and 471 I.P.C. in the Court of Additional Chief Judicial Magistrate, Court No.3, Rampur on which the concerned Magistrate has taken cognizance vide order dated 19th August, 2019 and has directed registration of the case which has been registered as Criminal Case No. 1453 of 2019 (State Vs. Mohd. Azam Khan & Others) under Sections 420, 467, 468 and 471 I.P.C.
9. Mr. Chaturvedi, learned Senior Advocate appearing for the applicants has made following submissions on behalf of the applicants:
i. That from the perusal of the entire material collected by the Investigating Officer during the course of investigation, it is apparently clear that no iota of evidence is available on record to establish any of the ingredients of Sections 420, 467, 468 and 471 I.P.C. against the applicants.
ii. As on date, no material has been collected by the Investigating Agency to show that the ingredients given in Sections 463 and 464 I.P.C. are attracted in the present case.
iii. The Investigating Agency has not brought on record any document to prove that the 30th September, 1990 is an incorrect date of birth of applicant no.3.
iv. From perusal of entire material collected by the Investigating officer during the course of investigation, it is apparently clear that there is nothing on record to show any dishonest intention on the part of any of the applicants in submitting incorrect information with regard to the date of birth of applicant no.3 and as to what benefit/gain he would have received by doing so.
v. Even assuming the prosecution case to be true, the offences as alleged will not travel beyond the purview of Section 23 of the Registration of Births and Deaths Act, 1969 and Section 27 of Birth, Death and Marriage Registration Act, 1886.
vi. From the material evidence collected by the Investigating officer during the course of investigation, it is clear that there is no iota of evidence available on record to establish the element of mens rea on the part of the accused applicants in the present case.
vii. There is also no document or material evidence collected by the Investigating Officer on the basis of which it is established that birth certificate dated 21st January, 2015 showing the date of birth of applicant no.3 as 30th September, 1990 is a forged document.
viii. No endeavour was made by the Investigating Officer to record the statement of Rajiv Rajpoot under Section 161 Cr.P.C., who issued birth certificate dated 28th June, 2012 during the course of investigation.
ix. There was no basis for the Investigation Officer to file charge-sheet against the applicants as the witnesses of charge-sheet have themselves stated that the entire records got destroyed in the fire which took place on 8th May, 2015 and have also stated that the birth certificate of applicant no.3 has also got cancelled on 30th January, 2015 by Registrar, Birth and Death, Nagar Paliak Parishad, Rampur.
x. Applicant no.3 got his previous passport cancelled and applied for new passport in accordance with law, as is evident from the statement of Mohammad Nasim, Passport Officer, Bareilly recorded under Section under Section 161 Cr.P.C., a copy of which has been enclosed as Annexure-14 to the affidavit accompanying the present application and that the applicant no.3 was issued new passport in accordance with law on the basis of birth certificate dated 21st January, 2015 and after police verification of the same.
xi. On the basis of birth certificate dated 21st January, 2015, a new PAN card bearing number DFOPK6164K has also been issued in favour of the applicant no.3 in accordance with law as is evident from the statement of Vijay Kumar, Tax Officer, Rampur recorded under Section 161 Cr.P.C.
xii. After issuance of birth certificate dated 21st January, 2015 the applicant has also applied for change of date of birth from 1st January, 1993 to 30th September, 1990 in the official records of the school and high school certificate which is still pending consideration.
xiii. The judgment and order dated 16th December, 2019 passed by the Hon'ble Court in Election Petition No. 8 of 2017 (Nawab Kazim Ali Khan Vs. Mohammad Abdullah Azam Khan) is not applicable and relevant and is not bar on the present case in view of Sections 40 to 44 of the Indian Evidence Act, 1872.
xiv. The informant of the present case has no locus standi to lodge the present first information report against the applicants as he has no relation with the facts and circumstances of the case.
xv. The informant Akash Saxena is a pawn created by the rulling government just with the intention to harass and tarnish the image of the applicants in society.
xvi. No complaint has been filed by the competent authority against the alleged offences committed by the applicants.
xvii. The elements of cheating and forgery are completely missing in the present case as the birth certificate dated 21st January, 2015 is a genuine document as it has been issued by Lucknow Municipal Corporation being a competent authority under the procedure established by law.
xviii. No offence whatsoever as alleged by informant and prosecution in the present case is made out against the applicants and the present proceedings is a sheer misuse and abuse of process of law.
xix. It is noteworthy to mention here that at the time of lodging of the first information report on 3rd January, 2019, the birth certificate dated 28th June, 2012 issued by Nagar Palika Parishad Rampur was no longer in existence as the same stood canclled vide order dated 30th January, 2015 in accordance with law.
xx. The entire prosecution story is completely politically motivated, backed with mala fides and the instant matter has no substance available against the applicants.
10. Per contra, learned A.G.As. for the State has vehementally opposed the submissions made by the learned counsel for the applicants. In reply, they have submitted as follows:
i. A genuine question arises in the mind of a prudent person as to why applicant no.1 and applicant no.2 have given affidavit in order to obtain a birth certificate of applicant no.3 before Nagar Palika Parisahd, Rampur and thereafter applicant no.2 had given an application supported by an affidavit before the Municipal Corporation, Lucknow, specially in the circumstance that the applicant no.3 was already having the legal proof of age or date of birth in the shape of certificate of secondary school examination (Class-X) of the year 2007 issued by the Central Board of Secondary Education, without any legal requirement, in fact mens rea was behind it from the very beginning in the mind of applicants.
ii. It was within the knowledge of applicants that on the basis of certificate of secondary school examination (Class-X) of the year 2007 issued by the Central Secondary Board of Secondary Education containing therein the date of birth as "1st January, 1993", the applicant no.3 is not even in a position to participate in the Uttar Pradesh Legislative Assembly Election of the year 2017, therefore, in the year 2015 they approached the Nagar Palika Parishad, Rampur for cancellation of certificate dated 28th June, 2012 and the Municipal Cooperation, Lucknow for issuance of another birth certificate showing therein the date of birth as "30th September, 1990, so that applicant no.3 may participate in the forth coming Legislative Assembly elections.
iii. It was within the knowledge of applicant nos. 1 to 3 that as per the High School Certificate the date of birth of applicant no.3 is "1st January, 1993" and in order to deceive the Lucknow Municipal Corporation, Lucknow, an application supported by an affidavit has been moved by applicant no.2 for issuance of third date of birth certificate of different date of birth as "30th September, 1990", whereas the real and true date of birth of applicant no.3 was "1st January, 1993" and ultimately, they obtained the manipulated birth certificate and applicant no.3 used the same in the Uttar Pradesh Legislative Assembly Election of the year 2017. The applicant no.3 won the election and was elected as a Member of Legislative Assembly, U.P., thereafter he enjoyed the financial benefits of M.L.A., which is wrongful gain on behalf of the applicants and wrongful loss of the other contesting participants of 34-Suar Constituency, Rampur, Uttar Pradesh in the Legislative Assembly Election of the year 2017 as well as of the society, thus, offence as alleged has been committed by the applicants for personal gain.
iv. During the course of investigation, the investigating Officer examined and recorded the statement of Sub-Registrar Tejpal Verma the then Sub-Registrar, Birth and Death Certificate, Nagar Palika Parishad, Rampur under Section 161 Cr.P.C. Except the statements of Vijay Kumar, Income Tax officer, who has issued PAN card in favour of applicant no.3, Sudheer Kumar Singh, St. Paul School, Civil Lines, Rampur, who has verified the secondary school examination (Class-X) of the year 2007 of applicant no.3 mentioning his date of birth as "1st January, 1993", Raj Singh, Principal Assistant, District Election Office, Rampur, who has stated that along with the nomination paper, the applicant no.3 has submitted his date of birth certificate dated 21st January, 2015 issued by the Municipal Corporation, Lucknow in which the date of birth of applicant no.3 was mentioned as "30th September, 1990" recorded under Section 161 Cr.P.C., the learned A.G.As. have referred to the statement of Salim, Record Keepker, Nagar Palika Parishad, Rampur in which he has stated that from year 2012 he is posted in Birth and Death Certificate Section of Nagar Palika Parishad, Rampur as Record Keeper. He takes care of all the records. He has submitted that in relation to the record of date of birth certificate of applicant no.3, an affidavit of applicant nos. 1 and 2 had been enclosed and on the basis of which the date of birth certificate of applicant no.3 has been prepared and registered. The Investigating Officer has also recorded second statement of Tejpal Verma.
v. Referring to the aforesaid statements recorded under Section 161 Cr.P.C., it has been submitted by the learned A.G.As. that it is not disputed that at the relevant point of time, applicant no.1 was Cabinet Minister in the U.P. Government holding portfolio of "Urban Planning and Development and Local Bodies" and the Nagar Palika Parishad, Rampur was within the control of his ministry, therefore, prima facie he is responsible for the sudden burning of documents related with the affidavit of applicant nos. 1 and 2 and even no first information report has been lodged qua the burning of documents in the year 2015.
vi. The applicant no.3 was having three certificates regarding his age or date of birth, the first being the Secondary School Examination (Class-X) certificate showing his date of birth as "1st January, 1993", the second being the date of birth certificate issued by the Nagar Palika Parishad, Rampur dated 28th June, 2012 showing his date of birth as "1st January, 1993" and the third being date of birth certificate issued by the Municipal Corporation, Lucknow dated 21st January, 2015 showing the date of birth as "30th September, 1990". The second date of birth certificate issued by the Nagar Palika Parisahd, Rampur was cancelled on 30th January, 2015 and prior to it's cancellation, third date of birth certificate was issued on 21st January, 2015 by the Municipal Corporation, Lucknow. Thus at the same point of time i.e. between the period 21st January, 2015 to 30th January, 2015", applicant no.3 was having three birth certificates of two different date of birth i.e. "1st January, 1993 and 30th September, 1990". The applicant no.3 is having five criminal antecedents to his credit except the present one.
vii. At the relevant point of time, applicant no.1 was Cabinet Minister in the U.P. Government holding portfolio of "Urban Planning and Development and Local Bodies" and the Nagar Palika Parishad, Rampur and Municipal Corporation, Lucknow were within the control of his ministry. Applicant no.1 is having 53 criminal antecedents to his credit except the present one.
viii. The certificate of secondary school examination/high school examination certificate issued by a recognized board like Central Board of Secondary Education is a most authentic, reliable and legal proof of age or date of birth, within the territory of India and no authority either Government or Private is permitted by law to deny the same and can ask for another proof of age or date of birth of any person like applicant no.3.
ix. One Nawab Kazim Ali Khan moved an election petition before this Court bearing Election Petition No. 8 of 2017 (Nawab Kazim Ali Khan Vs. Mohammad Abdullah Azam Khan), the same has been decided by a Bench of this Court on 16th December, 2019 and the Hon'ble Single Judge was pleased to give concurrent finding regarding the date of birth certificate issued by the Lucknow Municipal Corporation, Lucknow dated 21st January, 2015 and cancellation of old date of birth certificate issued by Nagar Palika Parishad, Rampur dated 30th January, 2015. In view of the aforesaid judgment, learned A.G.As. have submitted that the birth certificate so issued is a complete nullity particularly in view of the provisions of Section 13 of the Registration of Birth and Death Act. The birth certificate issued by the Municipal Corporation, Lucknow dated 21st January, 2015 is a manipulated and bogus document. The copy of the EOT register and MLR register as well as oral evidence led by the applicants before the Hon'ble Single Judge have been found untrustworthy and did not prove that date of birth of applicant no.3 is "30th September, 1990" and the Hon'ble Single Judge has observed that these evidences are the result of manipulations and fabrication of record. The Hon'ble Single Judge has also observed that the birth certificate issued by the Lucknow Municipal Corporation, Lucknow and cancellation order of the old birth certificate issued by the Nagar Palika Parishad, Rampur are false, fabricated and procured manipulated piece of papers. This paper has been procured in breach of the provisions of the Act i.e. the Registration of Birth and Death Act.
x. The above judgment relates to matters of a public nature, as the same has been delivered in a election petition and therein public documents (the date of birth certificate issued by the Lucknow Municipal Corporation, Lucknow dated 21st January, 2015 and cancellation order of the old date of birth certificate issued by the Nagar Palika Parishad, Rampur dated 30th January, 2015) have been considered and concurrent finding has been recorded that both the documents are manipulated, fabricated, bogus and false and at this juncture, the judgment delivered on 16th December, 2019 in the election petition is conclusive proof against the applicants unless or until the same has been stayed or quashed by the Apex Court.
xi. The learned A.G.As. have also relied upon the judgment of the Apex Court in the case of State of Haryana and Others Vs. Chaudhari Bhajan Lal and Others, reported in 1992 Supp.(1) SCC 335. On the cumulative strength of the aforesaid, learned A.G.As. urge that offence under Sections 420, 467, 468, 471 I.P.C. is made out against the applicants. The present application under Section 482 Cr.P.C. is devoid of merit and the same is liable to be dismissed by this Court.
11. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application under Section 482 Cr.P.C.
12. Though in the prayer clause, the applicants have prayed for quashing of the summoning order dated 19th August, 2019 along with other prayers, but perusal of the record shows that there is no summoning order passed on 19th August, 2019. After submission of the charge-sheet, the concerned Magistrate has only taken cognizance and directed to register the case only. However, seeing the nature of this case, this Court wishes to examine the legality, veracity or otherwise of the impugned charge-sheet submitted against the applicants under Sections 420, 467, 468 and 471 I.P.C. without examining the summoning order.
13. Now this Court comes on the issue of any cheating, fraud, deception, dishonesty being committed by the applicants in getting two extra date of birth certificates of applicant no.3, while he already possessed a birth certificate i.e. matriculation/high school examination certificate.
14. In paragraph 22 of the affidavit accompanying the present application under Section 482 Cr.P.C., it has been stated that the reason of wrong date of birth in the school register was a bona fide one, as one Shri Sahzeb Khan, S/o Munna Khan, R/o Mohalla Chauk Mohammed Sayeed Khan, Rampur, District-Rampur, a family friend of the applicants had gone to St. Paul School, Rampur at the time of the admission of applicant no.3 in Nursery Class in the year 1995, who had completed the formalities of the admission and somehow on his own, inadvertently furnished the date of birth of applicant no.3 as "1st January, 1993" in place of "30th September, 1990", which was carried in further educational records of applicant no.3.
15. In paragraph 23 of the said affidavit, it has been stated that the applicant no.3 completed his High School Examination in the year 2007 and Intermediate Examination in the year 2009 from St. Paul School, Rampur and thereafter, completed his B.Tech. Degree course in the year 2013 and the M.Tech. Degree course in the year 2015 from Galgotias College of Engineering and Technology, Greater Noida and the Galgotias University, Greater Noida, District-Gautam Budh Nagar respectively and the date mentioned, as the date of birth of the applicant no.3, is "1st January, 1993", was still continuing in all his above educational certificates.
16. Further in paragraph-24 of the aforesaid affidavit, it has been stated that in the year 2015, while the applicant no.3 was pursuing his studies of M.Tech. (final year) and was forwarding towards his career/job and scrutinized his educational records, he came to know that his date of birth is incorrectly recorded as "1st January, 1993" in place of "30th September, 1990", then he took immediate steps for correction in the same by filing an application on 23rd March, 2015 under the provisions of Examination Bye-Laws of the Central Board of Secondary Education, New Delhi before the Regional Officer, C.B.S.E. Allahabad through Principal, St. Paul's School Rampur, which is still pending consideration.
17. Paragraph-25 of the aforesaid affidavit also indicates that a date of birth certificate has also been issued in favour of applicant no.3 mentioning the date of birth as "1st January, 1993" on 28th June, 2012 by the Nagar Palika Parishad, Rampur. As per the statement of Tej Pal Verma, the then Deputy Registrar, Birth and Death, Nagar Palika Parishad, Rampur recorded under Section 161 Cr.P.C., a copy of which has been brought on record at page-88 of the paper book , it has been recorded that the date of birth certificate dated 28th June, 12 has been registered by Mr. Rajeev Rajpoot, the then Registrar, Nagar Palika Parishad, Rampur on the basis of affidavit filed by applicant nos. 1 and 2. He has also stated that since the same has been registered and issued illegally, Mr. Tejpal had subsequently cancelled the same. Mr. Tejpal has also stated that due to fire the entire original records had been destroyed. From the record it appears that the said date of birth certificate issued by the Nagar Palika Parishad, Rampur had been cancelled on 31st January, 2015, a copy of which has been enclosed as Annexure-6 to the affidavit accompanying the present application. In the judgment and order passed by the Hon'ble Single Judge dated 16th December, 2019 in Election Petition No. 8 of 2017, a copy of which has been brought on record by means of supplementary affidavit filed today, it has been recorded as follows:
"His parents got registered his birth with the Registrar of Birth Nagar Palika Parishad, Rampur, mentioning his date of birth as 01.01.1993. When the Officer-in-charge/Sub-Registrar, Birth and Death, Nagar Palika Parishad, Rampur, appeared in witness box as P.W.4, he did not produce the original records on the basis of which the birth certificate of the respondent bearing Registration No. RNPB-03857, dated 28.06.2012 Rampur was issued and instead merely produced the computer generated copy of birth certificate of the respondent. He stated that the entire record of the aforesaid birth certificate has burnt in fire on 08.05.2015 after the Registrar Birth and Death, Nagar Palika Parishad, Rampur, cancelled it on 30.01.2015."
18. From the record, it is also apparent that while having two date of birth certificates of applicant no.3, the first being matriculation certificate of the year 2007 and the second being date of birth certificate dated 28th June, 2012 issued by Nagar Palika Parishad, Rampur, a third date of birth certificate dated 21st January, 2015 had been issued by Municipal Corporation, Lucknow mentioning the date of birth of applicant as "30th Sepember, 1990". The said certificate has been registered on the basis of the application dated 17th January, 2015 supported by an affidavit of applicant no.2, namely, Smt. Tanzim Fatima. At page-31 of the judgment and order of the Hon'ble Single Judge dated 16th December, 2019, scanned copy of the letter made by applicant no.2 has been pasted. In the said letter, It has been stated that her son, namely, Mohd. Abdullah Azam Khan was born on 30th September, 1990 in Queen Mery's Hospital (King George Medical University", Lucknow Mahanagar. Due to unavoidable urgency and requirement, she needs date of birth certificate of her son. She also prays that date of birth certificate of his son be issued on the basis of that application and affidavit filed along with the same. She also states that verification from Queen Mery's Hospital may also be done. She lastly prays to issue date of birth certificate of her son at the earliest.
19. What is important to note here is that in the application along with affidavit dated 17th January, 2015, the applicant no.2 has concealed the issuance of second date of birth certificate of her son i.e. applicant no.3 dated 28th June, 2012 issued by the Nagar Palika Parishad, Rampur and she has also committed illegality in moving the application along with affidavit dated 17th January, 2015 for issuance of third birth certificate of her son i.e. applicant no.3, which has been registered on 21st January, 2015 mentioning the date of birth of applicant no.3 as "30th September, 1990". When as matter of fact, the second date of birth of the applicant no.3 dated 28th June, 2012 has been cancelled only on 31st January, 2015, therefore, between the period 21st January, 2015 to 31st January, 2015, applicant no.3 had three date of birth certificates i.e. matriculation examination certificate, date of birth certificate dated 28th June, 2012 and birth certificate dated 21st January, 2015. This fact has also not been disputed by the learned counsel for the applicants.
20. About the correctness or genuineness of the third date of birth certificate of applicant no.3 dated 21st January, 2015, the Hon'ble Single Judge in its judgment and order dated 16th December, 2019 has discussed in detail and observed that the said date of birth certificate has been obtained on the basis of manipulation and fabrication pf the relevant records. The relevant paragraph nos. 25 to 33 are being quoted herein-below:
"Birth Certificate issued by Nagar Nigam, Lucknow
25. Now, I proceed to examine whether birth certificate bearing Registration No.NNLKO - B-2015-292611 and date of registration 21.01.2015, issued by Registrar Birth and Death, Lucknow, on 21.01.2015 showing date of birth of the respondent as 30.09.1990, is a valid piece of paper/reliable evidence?
26. D.W.-2 - Dr. Archana Dwivedi, Additional Municipal Commissioner, Municipal Corporation, Lucknow, produced the complete original file relating to issuance of birth certificate of the respondent dated 21.01.2015 which contains merely the application of the respondent's mother and her affidavit both dated 17.01.2015 and a computerised sheet bearing particulars of registration of birth of the respondent. Copy of the aforesaid application and affidavit both dated 17.01.2015 submitted by the mother of the respondent before the Nagar Nigam Lucknow and filed in evidence as Ex.R-12 are pasted below (scanned copy):-
27. The D.W. -2 Dr. Archana Diwedi, Additional Municipal Commissioner, Municipal Corporation, Lucknow produced a birth register which is neither authenticated nor certified by any competent Officer nor paginated. In her cross examination she stated that the birth register is maintained by a clerk which is not in prescribed form as provided in the Registration of Birth and Death Act, 1969. She stated that list of Queen Mary's Hospital on the basis of which entry of the respondent's birth has been made in the birth register is not available. She stated that birth of the respondent was registered on 21.01.2015. Copy of the relevant two pages of the aforesaid birth register filed and attested by the D.W.-2 has been marked as Ex.12 (paper No.A-96/4-5) which are pasted below (scanned copy):-
28. The entry made in the aforesaid birth register of Nagar Nigam, Lucknow (Ex. R-12 - paper No. A 96/4-5) is a clear case of manipulation and interpolation. The entry of the respondent's birth has been inserted in the very little space at the bottom of the page showing it to have been made on 30.09.1990 mentioning the name of the respondent Mohd. Abdullah Azam Khan as HINDU male baby of Mrs. Tazeen Fatima, wife of Mohd. Azam Khan. Just one entry above the aforesaid entry of the respondent, is the entry in the name of one Sangeeta wife of Pankaj Gupta which as per endorsement of some officer, was made on 25.06.1993. Above the aforesaid entry dated 25.06.1993 is another entry in the name of one Vandana wife of R.N. Srivastava, made on 24.07.1992. The entries subsequent to the entry of the respondent's birth, appearing on the next page are the entries dated 02.10.1990, 03.10.1990, 26.09.1990 and 27.09.1990. The entries of the respondent's birth made in the aforesaid alleged birth register does not bear signature or order of any authority of the Nagar Nigam, Lucknow, or a Sub-Divisional Magistrate. Thus, entry in the aforesaid birth register in the name of the respondent was not made on 30.09.1990.
29. In paragraph No.5 of her affidavit (Ex. R-12) the D.W. -5 Mrs. Tazeen Fatima (mother of the respondent) herself stated that the birth of the respondent may be got verified from Hospital record of Queen Mary's Hospital. This clearly indicates that as on 17.01.2015 there was no entry in the name of the respondent in the alleged birth register of Nagar Nigam Lucknow (Ex. R-12 - paper No. A-96/4-5), otherwise she would have merely asked to issue birth certificate on the basis of the alleged entry in the birth register.
30. These facts leave no manner of doubt that the entry of respondent's birth in the alleged Birth Register of Nagar Nigam, Lucknow, showing his birth on 30.09.1990, was inserted much after 25.06.1993 and in all probabilities in the year 2015.
31. Facts aforestated leave no manner of doubt that the entry of the respondent's birth in the aforesaid birth register (Ex. R-12 - Paper No. A-96/4-5), was made by interpolation at the instance or under pressure of the interested parties. It was manipulation and fabrication. It shall not be out of place to mention that when the birth certificate dated 21.01.2015 of the respondent was got issued from Nagar Nigam, Lucknow, at that time the respondent's father was the Cabinet Minister of the Department of Urban Development and Local Bodies. Nagar Nigam, Lucknow, was under his ministry. Thus, the evidence of D.W.-5 - Mrs. Tazeen Fatima (mother of the respondent) and D.W. 10 (respondent) are false and wholly untrustworthy in so far as it relates to the entries of birth of the respondent on 30.09.1990.
32. That apart the respondent's mother Mrs. Tazeen Fatima (D.W.-5) moved the aforesaid application dated 17.01.2015, supported by an affidavit of the same date (Ex. R-12) to obtain birth certificate of the respondent from Nagar Nigam, Lucknow, in which she very conveniently concealed the fact of the then existing birth certificate of the respondent issued by the Registrar Birth and Death, Nagar Palika Parishad, Rampur (Ex. P-3 paper No.A-80/1), which she got cancelled subsequently on 30.01.2015.
33. The aforesaid application dated 17.01.2015 for issuance of birth certificate of the respondent was submitted by the mother of the respondent before the Nagar Swastha Adhikari, Nagar Nigam, Lucknow, after about 25 years of the alleged date of birth of the respondent which was endorsed by the some Officer of the Nagar Nigam, Lucknow, on 19.01.2015 and a day thereafter birth certificate was issued to the respondent by the Registrar (Birth & Death) Nagar Nigam, Lucknow, without observance of mandatory provisions of Section 13 of the Registration of Births and Deaths Act, 1969 (hereinafter referred to as the Act, 1969) and Rule 9 of the U.P. Registration of the Birth and Death Rules 2002 (hereinafter referred to as the U.P. Rules 2002). Copy of the computer generated sheet of birth registration filed by the D.W.-2 and marked as Ex. R-12 (Paper No.A-96/3) is pasted below (scanned copy):-"
21. This Court may also record that on the basis of third date of birth certificate dated 21st January, 2015 in which the date of birth of the applicant no.3 has been mentioned as "30th September, 1990, the applicant no.3 has participated in the election of Legislative Assembly and has been declared elected as the Member of Legislative Assembly on 11th March, 2017. The election of applicant no.3 was challenged by one Nawab Kazim Ali Khan by means of filing of Election Petition No.8 of 2017 on the ground that on the date of filing of nomination paper i.e. 24th January, 2017, the applicant no.3 was less than 25 years of age, which is the minimum age prescribed for filing nomination paper for election of member of legislative assembly. The said election petition has been allowed by the Hon'ble Single Judge by means of the judgment and order dated 16th December, 2019 declaring the election of applicant no.3 as void and setting aside the same.
22. Before coming to the merits of the submissions and replies on the issue of applicants on committing cheating, deception, fraud, it would be worthwhile to reproduce Section 420 I.P.C., which is cheating and defined in Section 415 I.P.C. and the same are being quoted herein-below:
"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".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
23. In order to attract allegations of "cheating", following things must exist:
(i) deception of a person;
(ii) (A) fraudulent or dishonest inducement of that person,
(a) to deliver any property to any person; or,
(b) to consent that any person shall retain any property, (B) intentional inducing that person to do or omit to do any thing,
(a) which he would not do or omit if he was not so deceived, and,
(b) such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
(Emphasis added)
24. Then in order to attract Section 420 I.P.C., essential ingredients are:
(I) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
25. In Mahadeo Prasad Vs. State of West Bengal, reported in AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
26. In Jaswantrai Manilal Akhaney Vs. State of Bombay, reported in AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
27. In G.V. Rao Vs. L.H.V. Prasad and others, reported in 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
28. In Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, reported in 2000(4) SCC 168, Court said that in the definition of 'cheating', there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, inducement must be fraudulent or dishonest. In the second class of acts, the inducement must be intentional but not fraudulent or dishonest. It was pointed out that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of accused at the time to inducement which may be judged by his subsequent conduct but for this, subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. In order to hold a person guilty of cheating it would be obligatory to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e, when he made the promise cannot be presumed.
29. In S.W. Palanitkar and others Vs. State of Bihar and another, reported in 2002(1) SCC 241, while examining the ingredients of Section 415 IPC, the aforesaid authorities were followed.
30. In Hira Lal Hari lal Bhagwati Vs. CBI, New Delhi, reported in 2003(5) SCC 257, Court said that to hold a person guilty of cheating under Section 415 IPC it is necessary to show that he has fraudulent or dishonest intention at the time of making promise with an intention to retain property. The Court further said:
"Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person 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, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the Section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest."
(Emphasis added)
31. In Devender Kumar Singla Vs. Baldev Krishan Singh reported in 2004 (2) JT 539 (SC), it was held that making of a false representation is one of the ingredients of offence of cheating.
32. In Indian Oil Corporation Vs. NEPC India Ltd., reported in 2006(6) SCC 736 in similar circumstances of advancement of loan against hypothecation, the complainant relied on Illustrations (f) and (g) to Section 415, which read as under:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."
33. The Court said that crux of the postulate is intention of the person who induces victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. Court also referred to its earlier decisions in Rajesh Bajaj Vs. State NCT of Delhi, reported in 1999(3) SCC 259 and held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.
34. In Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, reported in 2007(7) SCC 373 it was held that if no act of inducement on the part of accused is alleged and no allegation is made in the complaint that there was any intention to cheat from the very inception, the requirement of Section 415 read with Section 420 IPC would not be satisfied. The Court relied on the earlier decisions in Hridaya Ranjan Prasad Verma (supra) and Indian Oil Corporation Vs. NEPC India Ltd.(supra).
35. The aforesaid authorities have been referred to and relied on in reference to offence under Section 420 I.P.C. by a Division Bench of this Court in Sh. Suneel Galgotia and another Vs. State of U.P. and others reported in 2016 (92) ACC 40.
36. Apart from the above, this Court has also noticed the other judgments of the Apex Court, reiterating the aforesaid laws.
37. In the case of United India Insurance Company Ltd. V. B.Rajendra Singh and others, reported in JT 2000(3)SC.151, considering the fact of fraud, the Apex Court held in paragraph 3 as under :
"Fraud and justice never dwell together". (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper overall these centuries. Lord Denning observed in a language without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything"(Lazarus Estate Ltd. V. Beasley 1956(1)QB 702)."
38. In the case of Vice Chairman, Kendriya Vidyalaya Sangathan and Another Vs. Girdhari Lal Yadav, reported in 2004 (6) SCC 325, the Apex Court considered the applicability of principles of natural justice in cases involving fraud and held in paragraph 12 and 13 as under :
"12. Furthermore, the respondent herein has been found guilty of an act of fraud. In opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram chandra Singh v. Savitri devi this Court has noticed:
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16.Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad."
39. In the case of Ram Chandra Singh Vs. Savitri Devi and others, reported in 2003(8) SCC 319, the Apex Court held in paragraphs 15, 16, 17, 18, 25 and 37 as under :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.
37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."
40. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, reported in AIR 1994 SC 853, the Apex Court held in para 7 as under:
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
41. In State of Maharastra Vs. Mayer Hans George reported in AIR 1965 SC 722 (V 52 C 123), the Apex Court specially in paragraph-10, has observed as follows:
"10. In Russell on Crime, 11th edn. Vol. 1, it is stated at p. 64:.......... there is a presumption that in any statutory crime the common law mental element, mens rea, is an essential ingredient."
On the question how to rebut this presumption, the learned author points out that the policy of the courts is unpredictable. I shall notice some of the decisions which appear to substantiate the author's view. In Halsbury's Laws of England, 3rd edn. Vol. 10, in para, 508, at p. 273, the following passage appears:
"A statutory crime may or may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness. or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens rea is an essential element of the offence, it is necessary to look at the objects and terms of the statute." This passage also indicates that the absence of any specific mention of a state of mind as an ingredient of an offence in a statute is not decisive of the question whether mens rea is an ingredient of the offence or not: it depends upon the object and the terms of the statute. So too, Archbold in his book on "Criminal Pleading, Evidence and Practice", 35th edn., says much to the same effect at p. 48 thus:
"It has always been a principle of the common law that mens rea is an essential element in the commission of any criminal offence against the common law In the case of statutory offences it depends on the effect of the statute...... There is a presumption that mens era is an essential ingredient in a statutory offence, but this presumption is liable to be displaced either by the works of the statute creating the offence or by the subject matter with which it deals."
The leading case on the subject is Sherras v. De Rutzen(1). Section 16(2) of the Licensing Act, 1872, prohibited a licensed victualler from supplying liquor to a police constable while on duty. It was held that section did not apply where a licensed victualler bona fide believed that the police officer was off duty Wright J., observed "There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.".................."
42. In Kartar Singh Versus State of Punjab reported in (1994) 3 SCC 569, the Apex Court specifically in paragraph nos. 115 to 119 has observed as follows:
"115. In a criminal action, the general conditions of penal liabilities are indicated in old maxim "actus non facit reum, nisi mens sit rea" i.e. the act alone does not amount to guilt, it must be accompanied by a guilty mind. But there are exceptions to this rule and the reasons for this is that the legislature, under certain situations and circumstances, in its wisdom may think it so important, in order to prevent a particular act from being committed, to forbid or rule out the element of mens rea as a constituent part of a crime or of adequate proof of intention or actual knowledge. However, unless a statute either expressly or by necessary implication rules out 'mens rea' in cases of this kind, the element of 'mens rea' must be read into the provisions of the statute. The question is not what the word means but whether there are sufficient grounds for infer-ring that the Parliament intended to exclude the general rule that mens rea is an essential element for bringing any person under the definition of 'abet'.
116. There are judicial decisions to the effect that it is generally necessary to go behind the words of the enactment and take other factors into consideration as to whether the element of 'mens rea' or actual knowledge should be imported into the definition. See (1) Brand v. Wood (2) Sherras v. De Rutzen, (3) Nicholls v. Hall, and (4) Inder Sain v. State of Punjab.
117. This Court in State of Maharashtra v. M.H. George while examining a question as to whether mens rea or actual knowledge is an essential ingredient of the offence under Section 8(1) read with Section 23(1)(a) of the Foreign Exchange Regulation Act, 1947, when it was shown that the respondent (accused) in that case voluntarily brought gold in India without the permission of Reserve Bank, held by majority that the Foreign Exchange Regulation Act is designed to safeguarding and conserving foreign exchange which is essential to the economic life of a developing country and the provisions have therefore to be stringent aiming at eliminating smuggling. Hence, in the background of the object and purpose of the legislation, if the element of mens rea is not by necessary implication invoked, its effectiveness as an instrument for preventing smuggling would be entirely frustrated.
118. But Subba Rao, J. dissented and held thus : (SCR p.
139) "... the mere fact that the object of a statute is to promote welfare activities or to eradicate grave social evils is in itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of the offence. It is also necessary to enquire whether a statute by putting a person under strict liability helps him to assist the State in the enforcement of the law : can he do anything to promote the observance of the law? Mens rea by necessary implication can be excluded from a statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated and its exclusion enables those put under strict liability by their act or omission to assist the promotion of the law. The nature of mens rea that will be implied in a statute creating an offence depends upon the object of the Act and the provisions thereof."
119. Thereafter, a similar question arose in Nathulal v. State of M.P. as regards the exclusion of the element of mens rea in the absence of any specific provision of exclusion. Subba Rao, J. reiterated his earlier stand taken M.H. George and observed thus : (AIR p. 45) "Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence n conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated."
43. It is not disputed by the learned counsel for the applicants that as per the date of birth certificate recorded in the secondary examination certificate of the year 2007 and date of birth certificate issued by the Nagar Palika Parishad, Rampur, wherein the date of birth certificate of applicant no.3 has been mentioned as "1st January, 1993, applicant no. 3 was below 25 years of age when he filed nomination to contest the legislative assembly election. It is also not disputed that on scrutinising his Educational records, only in the year 2015 applicant no.3 came to know that his date of birth is incorrectly recorded as 1st January, 1993 in place of 30th September, 1990. The applicant no.3 and his parents i.e. applicant nos. 1 and 2 are highly educated and socially and politically active. His father i.e. applicant no.1 was Cabinet Minister in the U.P. State Government, His mother i.e. applicant no.2 has been Professor and is sitting Member of Rajya Sabha. He himself is M.Tech. He has travelled to foreign countries several times on the basis of his passport obtained in the year 2006 and 2012 and visa in the year 2014 in which his date of birth was recorded as 1st January, 1993 as disclosed by him. He obtained the pass port by moving an application under his own signature in the year 2006 and thereafter in the year 2012 in which he himself mentioned his date of birth as 1st January, 1993. He obtained visa and travelled to foreign countries prior to and subsequent to the year 2015 and always mentioned his date of birth as 1st January, 1993. Despite having a date of birth certificate like secondary examination certificate of the year 2007 mentioning the date of birth of applicant no.3 as "1st January, 1993", his parents (applicant nos. 1 and 2) got registered his date of birth with the Registrar of Birth Nagar Palika Parishad, Rampur, mentioning his date of birth as 1st January, 1993. When the Officer-in-charge/Sub-Registrar, Birth and Death, Nagar Palika Parishad, Rampur as well as the concerned Record Keeper, have stated in their statements that on the basis of affidavit filed by applicant nos. 1 and 2, date of birth certificate dated 28th June, 2012 mentioning the date of birth as "1st January, 1993" has been prepared and issued in favour of applicant no.3. However, they also stated that the entire record of the aforesaid birth certificate has burnt in fire on 8th May, 2015. The Registrar Birth and Death, Nagar Palika Parishad, Rampur, however, cancelled the same on 30th January, 2015. Thereafter on the basis of an application of applicant no.1, which has dully been supported by an affidavit, the third date of birth certificate dated 21st January, 2015 showing the date of birth of applicant no.3 as "30th September, 1990" has been obtained from Lucknow Municipal Corporation, Lucknow. On the basis of this third date of birth certificate, the applicant no.3 participated in election of Legislative Assembly in the year 2017 and elected as Member of Legislative Assembly.
44. This Court has also taken note of the fact that the applicant no.3 has passed his secondary school/high school examination in the year 2007 in which his date of birth has been mentioned as "1st January, 1990", thereafter for the reasons best known to the applicants, applicant nos. 1 and 2 got obtained a new birth certificate of applicant no.3 from Nagar Palika Parishad, Rampur in which the date of birth of applicant no.3 has also been mentioned as "1st January, 1993" and later instead of making efforts to correct or rectify the date of birth of applicant no.3 in his secondary school/high school certificate or in the birth certificate issued by Nagar Palika Parishad, Rampur, they have obtained a third, new birth certificate of applicant no.3 on the basis of an application made by applicant no.2 supported by her affidavit from Lucknow Municipal Corporation Lucknow in which the date of birth of applicant no.3 has been mentioned as "30th September, 1990. It is on this very basis of the changed new birth certificate, applicant no.3 participated in the legislative assembly election and was elected as member of legislative assembly in the year 2017 and has drawn salary from the public exchequer till today, which prima facie, in the opinion of the Court, amounts to cheating, deception and mens rea.
45. In view of the aforesaid facts, this Court finds some substance in the submissions made by the learned Additional Government Advocates that case for the offences under Sections 420, 467, 468 and 471 I.P.C. is made out against the applicants and the ingredients of Sections 463 and 464 I.P.C. are prima facie attracted against the applicants.
Now this Court comes on the issue of rectification or correction in the date of birth of applicant no. 3.
46. Birth certificates are one of the most important certified documents we'll ever obtain. Not only does it prove age of any person, but it proves his/her identity, citizenship, and location of birth. Any one needs his birth certificate to get numerous different legal documents including passports, but it's also used as a form of Identity when being hired for a new job, enrolled in school, or signed up for any military division. It's not uncommon that when a person first views his/her birth certificate, whether the original or a certified copy and if he finds that there is an error or any kind of mistake, in that cases, it's imperative that the persons is able to change or modify his birth certificate to reflect all of the pertinent details that identify who is he.
47. When for some reason, a person needs to change or modify his birth certificate including changing his age in his birth certificate or changing the date in his birth certificate, as mistakes can happen and are relatively easy to rectify, simple contacting the vital records department that was responsible for issuing the original certificate, will get him the information, the person need to proceed.
48. When it comes to changing a birth certificate after a name change or after adoption, the process is a little more involved. If the individual is under 1 year of age, a person may be able to submit paperwork allowing him to change his child's name without a court order. Each State's regulations will vary. If a person is 1 year of age and his name change is not due to marriage, he may be required to have a court order to successfully change his name. This just means he will be required to prove who he is, and in most cases he will have to include why he has decided to rename himself.
49. If the persons has been married and he is concerned about a change of birth certificate after marriage, he does not need to be as concerned. A name change due to marriage doesn't require a legal name change on his/her birth certificate.
50. Only the official issuing authority may legally make changes to a birth certificate once it's issued. Further, any alterations, more likely than not, render the certificate invalid.
51. For determining the correct age of a person, what is required to be examined as the evidence by a board/tribunal/court etc., it would be worthwhile to reproduce Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No. 2 of 2016), which has been introduced by the Government of India on 31st December, 2015. For ready reference, Section of the said Act reads as follows:
"94. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
52. In Eastern Coal Fields Limited and others vs Bajrangi Rabidas, reported in (2014) 13 SCC 681, the Apex Court has held in paragraph 17 of the judgment that there can be no iota of doubt that the date of birth mentioned in matriculation or higher secondary certificate has to be accepted as authentic.
53. In Manoj Kumar vs Government of NCT of Delhi and others reported in (2010) 11 SCC 702, in paragraph 12 of the decision it was held by the Apex Court that while the matriculation certificate is a strong material, other equally relevant material cannot be ignored, particularly when the matriculation certificate has been corrected. In the instant case, as per matriculation certificate, the date of birth of the petitioner is 1st January, 1993.
54. In Shah Nawaz vs State of Uttar Pradesh and another, reported in (2011) 13 SCC 751, it was observed by the Apex Court that medical opinion from Medical Board should be sought only when matriculation certificate or school certificate or any birth certificate issued by a corporation or by any panchayat or municipality is not available. In the instant case, the matriculation certificate is available to ascertain the date of birth of the petitioner.
55. It would also be worthwhile to reproduce Examination-Bye-laws framed by the Central Board of Secondary Education, New Delhi, on the basis of said provisions, the applicant no.3 had made an application for correction of his date of birth mentioned in the high school examination certificate. Regulation "69.2 of the said bye-laws, which is relevant in the facts of the present case is quoted herein below:
"69.2 Change/Correction in Date of Birth
(i) No change in the date of birth once recorded in the Board's records shall be made. However, corrections to correct typographical and other errors to make the certificate consistent with the school records can be made provided that corrections in the school records should not have been made after the submission of application form for admission to Examination to the Board.
(ii) Such correction in Date of Birth of a candidate in case of genuine clerical errors will be made under orders of the Chairman where it is established to the satisfaction of the Chairman that the wrong entry was made erroneously in the list of candidates/application form of the candidate for the examination.
**(iii) Request for correction in Date of Birth shall be forwarded by the Head of the School alongwith attested Photostat copies of :
(a) application for admission of the candidate to the School;
(b) Portion of the page of admission and withdrawal register where entry in date of birth has been made alongwith attested copy of the Certificate issued by the Municipal Authority, if available, as proof of Date of Birth submitted at the time of seeking admission; and
(c) the School Leaving Certificate of the previous school submitted at the time of admission.
***(iv) The application for correction in date of birth duly forwarded by the Head of school alongwith documents mentioned in byelaws 69.2(iii) shall be entertained by the Board only within five years of the date of declaration of result. No correction whatsoever, shall be made on application submitted after the said period of five years."
56. From reading of the aforesaid regulation of the bye-laws, it is apparently clear that no correction/rectification or change in the date of birth can be made if the same has already been recorded in the Board's records. Only typographical errors can be corrected. The aforesaid regulation also prohibits that no correction can be made on application submitted after expiry of a period of five years.
57. In view of the aforesaid the maximum period provided for correction or rectification or change of any typographical error in the date of birth of any candidate is provided for five years only.
58. Regarding the right to claim correction in the entry of educational institution or board as well as the maximum period provided for correction in the education board's record, the Apex Court in the case of Board of Secondary Education of Assam vs. Md. Sarifuzzaman & Others reported in (2003) 12 SCC 408 in paragraph nos. 10 to 13 has observed as follows:
"10. Nobody can claim a right to have corrected an entry in a certificate solemnly issued by an educational institution that too the one enjoying the status of a statutory Board under the Act. The right of the applicant to have an error or mistake corrected is accompanied by a duty or obligation on the part of the Board to correct its records and the certificate issued by it. Not only it is a corresponding duty or obligation, it has also to be perceived as a power exercisable by the Board to correct an entry appearing in the certificate issued by it. People, institutions and government departments etc.- all attach a very high degree of reliability, near finality, to the entries made in the certificates issued by the Board. The frequent exercise of power to correct entries in certificates and that too without any limitation on exercise of such power would render the power itself arbitrary and may result in eroding the credibility of certificates issued by the Board. We therefore, find it difficult to uphold the contention that the applicants seeking correction of entries in such certificates have any such right or vested right.
11. Lastly, the submission cannot also be countenanced that the regulatory measure engrafted into the Regulations on the subject of correction of errors in the certificates is 'absolute' in nature. The Regulation permits correction but subject only to reasonable restrictions.
12. Delay defeats discretion and loss of limitation destroys the remedy itself. Delay amounting to laches results in benefit of discretionary power being denied on principles of equity. Loss of limitation resulting into depriving of the remedy, is a principle based on public policy and utility and not equity alone. There ought to be a limit of time by which human affairs stand settled and uncertainty is lost. Regulation 8 confers a right on the applicant and a power coupled with an obligation on the Board to make correction in the date of birth subject to the ground of wrong calculation or clerical error being made out. A reasonable procedure has been prescribed for processing the application through Inspector of Schools who would verify the school records and submit report to the Board so as to exclude from consideration the claims other than those permissible within the framework of Regulation 8. Power to pass order for correction is vested on a higher functionary like Secretary of the Board. An inaccuracy creeping in at the stage of writing the certificates only, though all other prior documents are correct in all respects, is capable of being corrected within a period of three years from the date of issuance of certificate.
13. Three years period provided by the Regulation is a very reasonable period. On the very date of issuance of the certificate the concerned student is put to notice as to the entries made in the certificate. Everyone remembers his age and date of birth. The student would realize within no time that the date of birth as entered in the certificate is not correct if that be so once the certificate is placed in his hands. Based on the certificate the applicant would seek admission elsewhere in an educational institution or might seek a job or career where he will have to mention his age and date of birth. Even if he failed to notice the error on the date of issuance of the certificate, he would come to know the same shortly thereafter. Thus, the period of three years, as prescribed by Regulation 3, is quite reasonable. It is not something like prescribing a period of limitation for filing a suit. The prescription of three years is laying down of a dividing fine before which the power of the Board to make correction ought to be invoked and beyond which it may not be invoked. Belated applications, if allowed to be received, may open a pandora's box. Records may not be available and evidence may have been lost. Such evidence-even convenient evidence- may be brought into existence as may defy scrutiny. The prescription of three years bar takes care of all such situations. The provision is neither illegal nor beyond the purview of Section 24 of the Act and also cannot be called arbitrary or unreasonable. The applicants seeking rectification within a period of three years form a class by themselves and such prescription has a reasonable nexus with the purpose sought to be achieved. No fault can be found therewith on the anvil of Article 14 of the Constitution."
(emphasis added)
59. The case of the applicants that obtaining of the third date of birth certificate dated 21st January, 2015 issued by the Lucknow Municipal Corporation, Lucknow showing the date of birth of applicant no.3 as "30th September, 1990" does not comes with the purview of Section 420 and the same is only a correction or rectification of date of birth of applicant no.3 as in the earlier date of birth certificate issued by Nagar Palika Parishad, Rampur dated 28th June, 2012 and the secondary examination certificate, incorrect date of birth of applicant no.3 as "1st January, 1993" has been mentioned, prima facie cannot be accepted by this Court on the ground that the issuing authority has a right to rectify or correct the date of birth certificate issued earlier. In the facts of the present case, in the secondary examination certificate of applicant no.3, the Central Board of Secondary Education has right to rectify or correct the date of birth of applicant no.3, in the date of birth certificate issued by Nagar Palika Parishad dated 28th June, 2012, the authority of Nagar Palika Parishad, Rampur and in the date of birth certificate issued by Lucknow Municipal Corporation, Lucknow dated 21st January, 2015, the authority of Lucknow Municipal Corporation, Lucknow has right to correct or rectify the same. Apart from the above, as per the own case of applicants, applicant no.3 has already made an application on 23rd March, 2015 for correction of his date of birth in the secondary examination certificate under the provisions of Examination Bye-Laws of the Central Board of Secondary Education, New Delhi before the Regional Officer, C.B.S.E. Allahabad through Principal, St. Paul's School Rampur, which is still pending consideration.
60. Even otherwise, when applicant no.3 already possessed a birth certificate of secondary school/high school examination certificate, wherein the date of birth of applicant no.3 was mentioned as "1st January, 1993", there was no occasion for getting two date of birth certificates obtained from Nagar Palika Parishad, Rampur on 28th June, 2012 and thereafter from Lucknow Municipal Corporation, Lucknow on 21st January, 2015.
61. So far as the submission made by the learned counsel for the applicants that the informant, namely, Akash Saxena has no locus to lodge first information report against the applicant, is concerned, this Court refers to Sections 37, 38 and 43 of the Code of Criminal Procedure, which reads as follows:
"37. Public when to assist Magistrates and police. Every person is bound to assist a Magistrate or police officer reasonably demanding his aid-
(a) in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorised to arrest; or
(b) in the prevention or suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.
38. Aid to person, other than police officer, executing warrant.----When a warrant is directed to a person other than a police officer, any other person may aid in the execution of such warrant, if the person to whom the warrant is directed be near at hand and acting in the execution of warrant.
43. Arrest by private person and procedure on such arrest.
(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non- bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re- arrest him.
(3) If there is reason to believe that he has committed a non- cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released."
62. The Apex Court in the case of Sheo Nandan Paswan Vesus State of Bihar & Others reported in AIR 1987 SC 877, specifically in paragraph-14 has observed as follows:
"...................... It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 500 this Court pointed out that "punishment of the offender in the interests of the society being one of the objects behind penal statute enact- ed for larger goods of society, the right to initiate proceedings cannot be whittled down, circumscribed of lettered by putting it into a strait jacket formula of locus standi". This Court observed that locus standi of the complainant is a concept foreign to criminal jurisprudence. Now if any citizen can lodge a first information report or file a complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, we do not see why a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiator of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. If the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal of such prosecution, if initiated. Here in the present case, the offences charged against Dr. Jagannath Misra and others are offences of corruption, criminal breach of trust etc. and therefore any person who is interested in cleanliness of public administration and public morality would be entitled to file a complaint, as held by this Court in R.S. Nayak v.A.R. Antulay (supra) and equally he would be entitled to oppose the withdrawal of such prosecution if it is already instituted. ............."
63. In Subramanian Swamy Versus Manmohan Singh & Another reported in (2012) 3 SCC 64, the Apex Court has held that there is no restriction on a private citizen to file complaint against a public servant. The Apex Court has also held that locus standi of a private citizen is, therefore, not excluded. In paragraph nos. 72 and 73, the Apex Court has held as follows:
"72. The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law.
73. It was pointed out by the Constitution Bench of this Court in Sheonandan Paswan vs. State of Bihar and Others, (1987) 1 SCC 288 at page 315:
"......It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay v. R.S. Nayak this Court pointed out that (SCC p. 509, para 6) "punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi......"
(Emphasis added)
64. In view of the aforesaid, it is crystal clear that every person has a right to lodge a first information report against a person, who in his presence, commits a non-bailable or cognizable offence. Therefore, the informant of the present case, namely, Akash Saxena had every right to lodge first information report against the applicants.
65. Now, this Court comes on the issues whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet and the proceedings at the stage when the Magistrate has merely issued process against the applicants. The aforesaid issue has elaborately been discussed by the Apex Court the following judgments:
(i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866,
(ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335,
(iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222,
(iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122, and
(v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682.
66. In the case of R.P. Kapur (Supra), the following has been observed by the Apex Court in paragraph 6:
"Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under s. 561 -A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under s. 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the .proceedings is not at the present stage covered by any specific provision of the Code. It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the a11egations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no ques- tion of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magis- trate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and' contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under s. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re: Shripad G. Chandavarkar AIR 1928 Bom 184, Jagat Ohandra Mozumdar v. Queen Empress ILR 26 Cal 786), Dr. Shanker Singh v. The State of Punjab 56 Pun LR 54 : (AIR 1954 Punj 193), Nripendra Bhusan Ray v. Govind Bandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar ILR 47 Mad 722: (AIR 1925 Mad 39)."
67. In the case of State of Haryana (Supra), the following has been observed by the Apex Court in paragraph 105:
"105. 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.
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."
68. In the case of State of Bihar (Supra), the following has been observed by the Apex Court in paragraph 22. :-
"The question of mala fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for an unauthorised purpose. There is no material whatsoever is this case to show that on the date when the FIR was lodged by R.K. Singh he was activated by bias or had any reason to act maliciously. The dominant purpose of registering the case against the respondents was to have an investigation done into the allegations contained in the FIR and in the event of there being sufficient material in support of the allegations to present the charge sheet before the court. There is no material to show that the dominant object of registering the case was the character assassination of the respondents or to harass and humiliate them. This Court in State of Bihar v J.A.C. Saldhana and Ors., [1980] 2 SCR 16 has held that when the information is lodged at the police station and an offence is registered, the mala fides of the informant would be of secondary importance. It is the material collected during the investigation which decides the fate of the accused person. This Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., J.T. 1990 (4) S.C. 650 permitted the State Government to hold investigation afresh against Ch. Bhajan Lal inspite of the fact the prosecution was lodged at the instance of Dharam Pal who was enimical towards Bhajan Lal."
69. In the case of Zandu Pharmaceuticals Works Ltd. (Supra), the following has been observed by the Apex Court in paragraphs nos. 8 to 12:
"8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
9. In R. P. Kapur v. State of Punjab (AIR 1960 SC 866) this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.
11. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:
"(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 FIR 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 FIR 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. (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 Act concerned (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 Act concerned, 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."
As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P. P. Sharma (AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR 1999 SC 1044), State of U.P. v. O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC 2983) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259.
12. The above position was recently highlighted in State of Karnataka v. M. Devendrappa and Another (2002 (3) SCC 89)."
(emphasis added)
70. Thereafter, in the case of M.N. Ojha Vs. Alok Kumar Srivastava, reported in 2009 (9) SCC 682 has made observations in paragraphs 25, 27, 28, 29 and 30 regarding the exercise of power under section 482 Cr.P.C. as well as the principles governing the exercise of such jurisdiction:-
"25. Had the learned SDJM applied his mind to the facts and circumstances and sequence of events and as well as the documents filed by the complainant himself along with the complaint, surely he would have dismissed the complaint. He would have realized that the complaint was only a counter blast to the FIR lodged by the Bank against the complainant and others with regard to same transaction.
26. This Court in Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. [(1998)5 SCC 749 held:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
27. The case on hand is a classic illustration of non-application of mind by the learned Magistrate. The learned Magistrate did not scrutinize even the contents of the complaint, leave aside the material documents available on record. The learned Magistrate truly was a silent spectator at the time of recording of preliminary evidence before summoning the appellants.
28. The High Court committed a manifest error in disposing of the petition filed by the appellants under Section 482 of the Code without even adverting to the basic facts which were placed before it for its consideration.
29. It is true that the court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure cannot go into the truth or otherwise of the allegations and appreciate the evidence if any available on record. Normally, the High Court would not intervene in the criminal proceedings at the preliminary stage/when the investigation/enquiry is pending.
30. Interference by the High Court in exercise of its jurisdiction under Section 482 of Code of Criminal Procedure can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the Complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint."
(emphasis added)
71. The Apex Court in its latest judgment in the case of Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors. reported in 2020 0 Supreme (SC) 45, dealing with a cases under Sections 406 and 420 I.P.C. has observed that the Court does not have to delve deep into probative value of evidence regarding the charge. It has only to see if a prima facie case has been made out. Veracity of deposition/material is a matter of trial and not required to be examined while framing charge. The Apex Court further observed that the veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The Apex Court in paragraph nos. 21, 22 and 24 has observed as follows:
"21 The appellant has relied upon a two-judge Bench decision of this Court in Onkar Nath Mishra v The State, (2008) 2 SCC 561 to substantiate the point that the ingredients of Sections 406 and 420 of the IPC have not been established. This Court while dealing with the nature of evaluation by a court at the stage of framing of charge, held thus:
"11. 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
(Emphasis supplied) 22 In the present case, the High Court while directing the framing the additional charges has evaluated the material and evidence brought on record after investigation and held:
"LW1 is the father of the de facto complainant, who states that his son in law i.e., the first accused promised that he would look after his daughter at United Kingdom (UK) and promised to provide Doctor job at UK and claimed Rs.5 lakhs for the said purpose and received the same and he took his daughter to the UK. He states that his son-in-law made him believe and received Rs.5 lakhs in the presence of elders. He states that he could not mention about the cheating done by his son-in- law, when he was examined earlier. LW13, who is an independent witness, also supports the version of LW1 and states that Rs.5 lakhs were received by A1 with a promise that he would secure doctor job to the complainant's daughter. He states that A1 cheated LW1, stating that he would provide job and received Rs.5 lakhs. LW14, also is an independent witness and he supported the version of LW13. He further states that A1 left his wife and child in India and went away after receiving Rs.5 lakhs.
Hence, from the above facts, stated by LWs. 13 and 14, prima facie, the version of LW1 that he gave Rs.5 lakhs to A1 on a promise that he would provide a job to his daughter and that A1 did not provide any job and cheated him, receives support from LWs. 13 and 14. When the amount is entrusted to A1, with a promise to provide a job and when he fails to provide the job and does not return the amount, it can be made out that A1 did not have any intention to provide job to his wife and that he utilised the amount for a purpose other than the purpose for which he collected the amount from LW1, which would suffice to attract the offences under Sections 406 and 420 IPC. Whether there is truth in the improved version of LW.1 and what have been the reasons for his lapse in not stating the same in his earlier statement, can be adjudicated at the time of trial.
It is also evidence from the record that the additional charge sheet filed by the investigating officer, missed the attention of the lower court due to which the additional charges could not be framed."
(Emphasis supplied) 24 The veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The High Court has relied upon the materials on record and concluded that the ingredients of the offences under Sections 406 and 420 of the IPC are attracted. The High Court has spelt out the reasons that have necessitated the addition of the charge and hence, the impugned order does not warrant any interference."
(Emphasis added)
72. The submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
73. The prayer for quashing the impugned charge-sheet as well as the proceedings of the entire proceedings of the aforesaid State case are refused as I do not see any abuse of the court's process at this pre-trial stage.
74. The present application under Section 482 Cr.P.C. is, accordingly, rejected. There shall be no order as to costs.
(Manju Rani Chauhan, J.) Order Date :- 7.2.2020 Sushil/-