Allowed

Harkeshi Devi v. State of Rajasthan and Anr.

Rajasthan HC22 Feb 2017CRLMP/628/2017

Case brief

AI extract

What is this about?

The Rajasthan High Court quashed an FIR alleging forgery and cheating in an election nomination form. The court held that false declarations did not constitute cognizable offences under the IPC and the proper remedy was an election petition, not criminal proceedings.

What did the court decide?

FIR No. 08/2017 registered at Police Station Rajgarh, District Alwar for offences under Sections 420, 467, 468, 471 and 120-B IPC is quashed and set aside.

Harkeshi Devi Vs State of Rajasthan and Anr. — Election Law | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B.Criminal Miscellaneous (Petition) No. 628 / 2017

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Harkeshi Devi Wife of Kailash Chand Meena, by Caste Meena,, Aged About 32 Years, R/o Village Murer, Police Station Rajgarh, District Alwar.

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Versus

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State of Rajasthan Through P.P.

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Rekha Devi Wife of Shri Ramesh Chand Meena, by Caste Meena,, Aged About 25 Years, R/o Village Murer, Police Station Rajgarh, District Alwar.

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_____________________________________________________ For Petitioner(s) : Mr. Kapil Prakash Mathur

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For Respondent(s) : Ms. Sonia Sandilya

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For Complainant : Mr. Raj Kumar Sharma

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment

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22/02/2017

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The petitioner has preferred this Petition for quashing FIR No. 08/2017 Registered at Police Station Rajgarh DistrictAlwar for offence under Section 420, 467, 468, 471 and 120-B IPC.

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The allegation levelled in the FIR was that the nomination form to contest the election for the post of Sarpanch in Gram Panchayat Surer, for the Panchayat Election 2015 was filled by petitioner on 23.01.2015, whereby the fact that the petitioner had three children was concealed amounting to furnishing of a false declaration and thereby contesting election even when the petitioner was not qualified to do so.

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Learned counsel for the petitioner has relied upon the judgment of Amita Trivedi & Anr. Vs. State of Rajasthan &

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(2 of 14)

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Anr. passed in the S.B. Criminal Miscellaneous Petition No.

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2763/2011, decided on 30.07.2012 , reported in 2013(2) RLW 1252 (Raj.) the relevant portion as per the counsel for the petitioner is as follows:-

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“Upon a consideration of the arguments advanced at the bar and after going through the F.I.R. impugned and the case diary, it is apparent that the highest allegation of the complainant in this case is that the petitioner No.1 whilst filling up the nomination form deliberately mentioned the name of her father-in-law in the column where her husband name was required to be mentioned. This is the highest case of the prosecution as per the FIR registered for the offences under Sections 406, 420, 467 and 120B IPC.

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For the offence of preparing a forged document, which is punishable under Section 467 IPC, the document in issue should be a false document as defined under Section 464 IPC, which reads as below:

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"464. Making a false document- A person is said to make a false document or false electronic record-

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First- Who dishonestly or fraudulently-

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(a) makes,signs, seals or executes a document or part of a document;

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(b) makes or transmits any electronic record or part of any electronic record; © affixes any electronic signature on any electronic record;

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affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception prectised upon him, he does not know the contents of the document or electronic record of the nature of the alteration."

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For the offence of cheating, there should be an averment of the prosecution that the accused by using fraudulent means induced the person so cheated to deliver some valuable security etc. Hon'ble the Apex Court in the case of Mohammed Ibrahim Vs. State of Bihar reported in (2009) 8 SCC751 whilst dealing with the offences of cheating and forgery held as below:

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"7.The question that therefore, arises for consideration is whether the material on record prima facie constitutes any offences against the accused. The contention of the appellant is that if the allegations made in the complainant and FIR, even if accepted to be true in entirety did not disclose the ingredients of any offence of forgery (Sections 467 and

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or cheating (Section 420) or insult (Section 504) or wrongful restraint (section

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or causing hurt (Section 323) and there was no other material to show any

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(4 of 14)

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offence and therefore, their application ought to have been accepted.

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This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal Courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. Let us examine the matter keeping the said principles in mind.

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There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide belies that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by

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(5 of 14)

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whose authority he knows that it was not made or executed.

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When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.

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The Penal Code however defines 'fraudulently', an adjective form of the word 'fraud', in Section 25, as follows :

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"25. 'Fraudulently'.-A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.

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The term "fraudulently" is mostly used with the term "dishonestly" which is defined in Section 24 as follows :

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"24 'Dishonestly'.- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly".

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To 'defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:

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(i) Fraudulent removal or concealment of property (Sections 206, 421, 424)

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(ii) Fraudulent claim to property to prevent seizure (Sec. 207)

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(iii) Fraudulent suffering or obtaining a decree (Sections 208 and 210)

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(6 of 14)

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(iv) Fraudulent possession/delivery of counterfeit coin (Sections

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239, 240, 242 and

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243).

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(v) Fraudulent alteration/diminishing weight of coin (Sections 246 to 253)

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(vi) Fraudulent acts relating to stamps (Sections 255-261)

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(vii) Fraudulent use of false instruments/weight/measure (Sections 264 to

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(viii) Cheating (Sections 415 to 420)

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(ix) Fraudulent prevention of debt being available to creditors (Sec. 422).

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(x) Fraudulent execution of deed of transfer containing false statement of consideration (Sec. 423).

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(xi) Forgery making or executing a false document (Sections 463 to 471 and 474)

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(xii) Fraudulent cancellation/destruction of valuable security etc. (Sec. 477)

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(xiii) Fraudulently going through marriage ceremony (Sec. 496).

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It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law."

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Thus from the admitted allegations of the prosecution there is no such material on the strength whereof it can be concluded that the petitioners committed any of the acts mentioned in Section 463 or 464 IPC so as to invoke the offence under Section 467 IPC in this case.

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So far as the offence of cheating (Section 420 IPC) is concerned, it is no case of the

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(7 of 14)

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prosecution that the petitioners induced anybody dishonestly and thereby deceived such person to deliver any property or to make, alter or destroy the whole or any part of the valuable security, therefore, exfacie, the offence of cheating is not made out against the petitioners from the admitted allegations of the prosecution.

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As regards the offence under Section 406 IPC, there has to be an allegation that accused were entrusted with some valuable security, which was subsequently misappropriated. Admittedly, there is no such allegation of the prosecution in the instant case. Therefore, none of the offences as set out in the F.I.R. can be said to be made out against the accused in this case.

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Considering the allegations of the prosecution to be true at the highest, the offence, if any, which can be said to be made out against the accused would be the offence under Section 177 of the IPC, which reads as under:

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"177. Furnishing false information.Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both;

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or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

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For the purpose launching a prosecution for the offence under Section 177 IPC, the

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(8 of 14)

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prosecution can only be launched as per Section 195(1)(a) Cr.P.C. which reads as under:

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"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.(1) No Court shall take cognizance--

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(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860) or

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(ii) of any abetment of, attempt to commit, such offence, or

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(iii) of any criminal conpiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whomhe is administratively subordinate."

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Thus, before the prosecution for the offence under Section 177 IPC can be initiated, it is mandatory that the public servant before whom the alleged false information has been furnished, should file a complaint then only the court can take cognizance of the offence. Obviously, the returning officer before whom the nomination form was furnished has not filed any complaint against the petitioners, therefore, permitting continuance of investigation of the impugned F.I.R. in this case cannot be said to be anything but an abuse of process of law.

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The counsel for the petitioner has submitted in the judgment of Rewant Ram Vs. State of Rajasthan & Anr. passed in S.B. Criminal Misc. Petition No. 1120/2016 decided on 31.05.2016, reported in 2016(3) Cr.L.R. (Raj.) 1235 the relevant portion of which is as follows:-

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(9 of 14)

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The cheating is defined in section 415 of the Indian Penal Code, which reads as under:

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"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".

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For the offence of cheating, there should be an averment in the complaint that the accused by using fraudulent means induces a person so cheated to deliver some valuable security etc.

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Similarly, for the offence of forgery, the document in issue should be a false document as defined in section 464 of the Indian Penal Code, which reads as under: "464. Making a false document- A person is said to make a false document or false electronic record-

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First- Who dishonestly or fraudulently-

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(a) makes, signs, seals or executes a document or part of a document;

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(b) makes or transmits any electronic record or part of any electronic record;

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(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or

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(10 of 14)

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affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record of the nature of the alteration."

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From bare reading of the impugned FIR, it is clear that there is no averment to the effect that the accused by using fraudulent means induces the complainant or any person so cheated to deliver some valuable security etc. Hence, the offence punishable under section 420 IPC cannot be said to be made out from allegations contained in the impugned FIR.

¶100

It is noticed that in the impugned FIR, there is no allegation to the effect that the petitioner has prepared a false document and used it as a genuine one. The main allegation in the impugned FIR against the accused is to the effect that he has furnished false declaration regarding his children and on the basis of which, he has contested the election though he was not qualified to do so. Furnishing false information before a public servant cannot be equated with the execution of a false document. If what is executed is not a false document, there is no forgery and if there is no forgery, then no offence under the provisions of sections 420, 467, 468, 470, 471 IPC is made out.

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The Hon'ble Supreme Court in State of Haryana & Ors. v. Bhajan Lal & Ors., MANU/SC/0115/1992 : 1992 SCC (Cri) 42 has held as under: "102. 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

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(11 of 14)

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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.

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(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.

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(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.

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(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.

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(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.

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(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

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(12 of 14)

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specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(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."

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In the above referred judgment, the Hon'ble Supreme Court in sub paras (2) and (4) of para No. 102 has held that 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, then the FIR can be quashed.

¶115

Upon perusal of the impugned FIR, it is apparent that the main allegation of the complainant in the impugned FIR is to the effect that the accused-person has furnished false information or has not furnished correct information regarding his children while contesting the election. If the said allegations of the complainant are accepted to be true then too, the offence, which at best can be said to be committed by the accused would be of making statement in connection with an election which is punishable under section 171- G IPC or furnishing false information to any public servant punishable under section 177 IPC or the offences punishable under sections 181, 193, 199 and 200 IPC. However, all the above mentioned offences are non-cognizable offences. As per the provisions of sub-section (2) of section 155 Cr.P.C., a Police Officer cannot investigate into the allegations of noncognizable offence without any order of the Magistrate having power to try such case or commit the case for trial, however, no such order of the Magistrate concerned is available on record.

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In view of the above discussions, this Court is of the opinion that the impugned FIR is liable to be quashed.

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(13 of 14)

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Consequently, the instant criminal misc. petition is allowed and the impugned FIR No. 62/2016 lodged at Police Station, Bichhwal, District Bikaner is quashed. However, it will be open for the complainant or the officer, before whom any false information or evidence is furnished by the accused persons, to avail appropriate remedy as provided under the law.

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Stay petition stands disposed of.”

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The counsel for the respondent Smt. Sonia Sandilya,

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Public Prosecutor, however, stated that since the offence was of serious nature, therefore, the Court should not interfere with the FIR at this stage.

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Learned counsel for the complainant, Shri Raj Kumar Sharma relied upon the precedent law of Lalu Ram Yadav Vs. State of Rajasthan through, PP in S.B. Criminal Misc. Petition No. 2521/2015 in which the learned Court has held that at the stage of investigation, the Court should not examine the nature of the offence.

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The counsel for the petitioner, further, refutes the applicability of the precedent law on account of the fact that the offence of disclosing of information was constituted, if at all, only against the public authority and not against a private person who shall have the remedy of filing an election petition and cannot abuse the process by filing Criminal proceedings. This Court is in agreement with the argument made by the counsel for the petitioner that though in the normal course of things there should not be any interference in the investigation but when on the face of it the offence cannot be said to have been committed then the

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(14 of 14)

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offence would not be constituted on the complaint of private person.

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After hearing the counsel for the parties as well as perusing the record of the case along with the precedent law cited, in the opinion of this Court, it is absolutely clear that the allegation made in the FIR did not disclose any cognizable offence and at the most, the remedy available to the complainant was to challenge the election upon the appropriate forum rather than filing and FIR. This Court is of the opinion that wrong facts and nomination paper cannot be concluded considered as to constitute offence of chating. Even if the offence was covered by the Section 171 of IPC which is furnishing false information before the public servant then the same can be pursued as an offence by the concerned officer or the concerned public servant as prosecution by other persons would be barred by Section 195(1) (a) of Cr.P.C. Thus from the precedent law cited above it is clear that even if the allegations are admitted, there is no material on the basis of which can if be concluded that the petitioner had committed any case under Section 420, 467, 468, 471 and 120-B IPC. Thus on the basis of the aforesaid discussion as well as the precedent law submitted by the counsel for the petitioner.

¶129

The Miscellaneous Petition is allowed and FIR No. 08/2017 registered at Police Station Rajgarh, District-Alwar for the offence under Section 420, 467, 468, 471 and 120-B IPC is quashed and set aside.

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(DR. PUSHPENDRA SINGH BHATI)J.

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Arun/43

Harkeshi Devi v. State of Rajasthan and Anr.

Case brief

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Harkeshi Devi v. State of Rajasthan and Anr.

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