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1997 DIGILAW 1183 (RAJ)

Jagdish Chand v. State of Rajasthan

1997-09-25

ARUN MADAN

body1997
JUDGMENT 1. (Oral)- Heard the learned counsel for the petitioner at length and also perused the impugned order dated 12.8.97 passed by ACJM No. 7, Jaipur City, Jaipur in Criminal Case No. 196/91. From the impugned order, it is apparent that the accused petitioner who is a deed-writer in the District Court 5 at Jaipur is alleged to have fabricated some documents including some affidavits i.e. an affidavit of himself and 2 certificates/affidavits of the members of State Legislative Assembly who had deposed in the said affidavits in favour of the accused-petitioner that he has been resding in Jaipur for last about 10 years. The aforesaid documents were allegedly fabricated with a view to 10 derive undue benefit by the petitioner and the said act of the petitioner comes within the purview of the provisions of Section 195, Cr.P.C. for the commission of the substantive offence of forgery of aforesaid documents punishable under Section 471 IPC and the act of presenting them as genuine which is punishable under Section 468, 471 and 420 IPC. The aforesaid forgery was detected by the complainant who is Additional Collector No. 1, Jaipur City, Jaipur as on 23.8.1991 when the complaint in this regard was forwarded by the said officer to the Collector-cum-District Magistrate, Jaipur on 17.3.81. On the basis of the said complaint, the FIR was lodged with Police Station Bani Park, Jaipur on 24.3.81 and the cognizance has been taken against the petitioner by the Court on 23.12.82. Thereafter, on 6.3.87 an application was moved by the Petitioner under Section 195 and 340 Cr.P.C. in the Court of ACJM No. 1, Jaipur City, Jaipur with a request for dropping of the proceedings against the him on account of the cognizance having been taken against the petitioner by the police on the basis of the aforesaid complaint forwarded by the Additional Collector. The said Application was rejected on 12.8.97 on merits as being not maintainable by the trial court against which the petitioner has come to this Court by way of instant misc. petition. The said Application was rejected on 12.8.97 on merits as being not maintainable by the trial court against which the petitioner has come to this Court by way of instant misc. petition. During the course of hearing, learned counsel for the petitioner advanced the following contentions (i) That the complaint was not forwarded by the Additional Collector himself but he directed the registration of the FIR and the same was registered with the Police Station Banipark, Jaipur on 27.3.81 on the basis of which cognizance has been taken against the accused-petitioner; (ii) That the Additional Collector was not competent to get the FIR registered unless and until he had made a complaint in writing and the cognizance should not have been taken against the accused-petitioner straightway only on the basis of formal FIR itself; (iii) That as per the definition of Section 2 (d) of the code of Criminal Procedure, 1973, hereinafter referred to as the Code, the "complaint" means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report-The contention of the learned counsel for the petitioner is that the court was not competent to take cognizance against the accused- petitioner for the commission aforesaid offences and in the absence of formal complaint having been made by the complainant i.e. the Additional Collector, Jaipur. Further, the word "Magistrate" means a Judicial Magistrate and not the Executive Magistrate as defined under Section 3(3), of the code. 2. Further, the word "Magistrate" means a Judicial Magistrate and not the Executive Magistrate as defined under Section 3(3), of the code. 2. As regards, the first contention of the learned counsel for the petitioner, I am of the considered view that it was not incumbent upon the Additional Collector to have made a complaint to the Court of Judicial Magistrate for the purpose of taking cognizance against the accused petitioner for the commission of aforesaid offences inasmuch as, he being a public servant was competent enough to lodge a first information report himself directly with the concerned police station having the jurisdiction to register the FIR instead of filing formal complainant in writing because in view of Section 2(d) of the Code, it is not necessary for the complainant to forward a complaint in writing to the Area Magistrate inasmuch as, the congnizance can be taken even on the basis of an oral complaint by the concerned Magistrate and since in this case admittedly, the FIR was lodged directly by an Executive Officer of the State of the rank of Additional Collector to the concerned police station, in my view no illegality has been committed in this regard in view of the commission of the substantive offence of fabrication of documents by the petitioner with the sole intention of presenting them as genuine which has been done with the sole intention of the accused of deriving undue gain to himself but in which he could not finally succeed in view of timely presentation of the complaint by the Additional Collector which was registered as an FIR by the concerned Police Station. The said documents were found to be fabricated and forged during the course of investigation by the Investigating Police. 3. As regards, the second contention of the learned counsel for the petitioner, in my view, there is obvious fallacy in the said argument because FIR was registered by the police directly on the basis of oral statement of the complainant and not on the basis of a complaint madein writing to the said effect. The task of the Investigating Agency has to proceed immediately for investigation in any of the two situations as aforesaid. 4. The task of the Investigating Agency has to proceed immediately for investigation in any of the two situations as aforesaid. 4. As regards the third contention of the learned counsel for the petitioner that no Court can take cognizance in the matter except on the basis of the complaint presented to the concerned Court within the ambit of Section 2 (d) of the Code of Criminal Procedure which provides that any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known on unknown, has committed an offence, but does not include a police report, I am of the view that this contention of the learned counsel also does not help in advancement of his case in any manner because, I am of the considered view that the report made by the police officer in a case which discloses after investigation the commission of a non-cognizable offence shall be deemed to be a complaint and the police officer to whom such complaint has been made and on the basis of which the FIR has been registered shall be deemed to be the complaint on the basis of which the Investigating Agency is free to investigate intd. the matter. I am further of the view that receipt of a complaint is only one of the modes according to which the Magistrate can take cognizance of an offence as provided under the provisions of Section 190 (1) (a) of the Code to whom the complaint is presented and if on the basis of examining the complainant and his witnesses under Section 200 of the Code if the Court is satisfied that there are sufficient grounds for proceeding against the accused, it may at once issue process for attendance of the accused in accordance with Section 202 of the Code and such process cannot be refused unless the Magistrate finds that the evidence led before him is not reliable or untrustworthy. It is also open to the Magistrate that if on the basis of the preliminary evidence taken on the record he is satisfied that no prima-facie case is made out for issuance of a process, he may dismiss the complaint at his option if it does not disclose the commission of a triable offence. 5. It is also open to the Magistrate that if on the basis of the preliminary evidence taken on the record he is satisfied that no prima-facie case is made out for issuance of a process, he may dismiss the complaint at his option if it does not disclose the commission of a triable offence. 5. Looking to the facts and circumstances of the present case and the seriousness of the allegations made against the accused petitioner by the Investigating Agency on the basis of the FIR registered against him and also in view of the order dated 12.8.97 passed by the trial Court taking cognizance against the petitioner, I am of the considered view that there are sufficient grounds for proceeding against the petitioner for the commission of the offences under Section 468, 471 and 420 IPC and the cognizance has been rightly taken by the court on the basis of a complaint forwarded by the Additional Collector. I am informed by the learned Public Prosecutor that the Charges for the commission of offences are yet to be framed by the trial Court and it is only at the pre- charge stage that the petitioner has come to this Court by way of instant petition which is not maintainable even on merits of the case. 6. During the course of hearing, leanred counsel for the petitioner has placed reliance on the judgments in the cases of Sudali Madan and another v. State : 1985 Cr.L.J. 310 ; Babu v. Emperor : AIR 1940 (Oudh) 241 ; Surjit Singh v. Balbir Singh : 1996 (2) Current Criminal Reports (SC) 122 and Mahesh Chandra Mehta v. State of Rajasthan and ors. : 1995 (4) Current Criminal Reports (SC) 274. I have examined the ratio of the aforesaid judgments and in my considered opinions the facts of the same are distinguishable and their ratio is not attracted to the instant case. 7. Consequently, the misc. petition being devoid of merit is accordingly rejected. : 1995 (4) Current Criminal Reports (SC) 274. I have examined the ratio of the aforesaid judgments and in my considered opinions the facts of the same are distinguishable and their ratio is not attracted to the instant case. 7. Consequently, the misc. petition being devoid of merit is accordingly rejected. However, keeping in view the fact that the FIR was registered on 27.3.81 on the basis of which the cognizance has been taken by the ACJM No. 7, Jaipur City, Jaipur on 12.8.97, I deem it proper to direct the trial Court to expeditiously deal with and decide the matter and in no case not later than 6 months from the date of receipt of the certified copy of this order.Petition dismissed. *******