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Gujarat High Court · body

2003 DIGILAW 628 (GUJ)

RAMANBHAI SIMONBHAII CHRISTIAN v. STATE

2003-10-17

D.P.BUCH

body2003
D. P. BUCH, J. ( 1 ) THE petitioner herein faced a criminal case before the learned Chief Judicial Magistrate, Nadiad being Criminal Case No. 1783/1987 for offences punishable u/s. 420, 467, 468 and 477 (A) of IPC. At the end of trial, the petitioner was convicted for the said offences and was sentenced, by judgment and order dated 30/04/90 in the said criminal case, as follows; (I) for an offence punishable u/s. 420 IPC, R. I. for 3 years and fine of Rs. 250/ -. In default of payment of fine further S. I. for 2 months. (II) for an offence punishable u/s. 467 IPC, R. I. for 4 years and fine of Rs. 250/ -. In default of payment of fine further S. I. for 2 months. (III) for an offence punishable u/s. 468 IPC, R. I. for 3 years and fine of Rs. 150/ -. In default of payment of fine further S. I. for 1 month. (IV) no separate sentence awarded for an offence punishable u/s. 477 IPC. (V) the substantive sentence ordered to be run concurrently. ( 2 ) FEELING aggrieved by the said judgment and conviction order of the trial court, the petitioner preferred criminal appeal being Criminal Appeal No. 24/1990 before the Sessions Court, Kheda at Nadiad. However, by judgment and order dated 16/03/92, the learned Addl. Sessions Judge, Nadiad dismissed the said appeal of the petitioner. Hence, the present revision application u/s. 397 read with 401 of the Code of Criminal Procedure, 1973 (for short, "the Code" ). ( 3 ) THE facts of the case of the prosecution against the petitioner may be briefly stated as follows;3. 1 the petitioner was serving as an Accounts Clerk in the Civil Court at Kapadvanj in Kheda District since June 1981. In the year 1983, though he enjoyed vacation leave for certain days, he made erasers in the service records, in order to show that he did not enjoy vacation leave during the said period and that he was prevented from enjoying vacation leave. It is well-known that an employee belonging to vacation department would be entitled to get benefit of earned leave, unless he is prevented from enjoying vacation leave. The petitioner, though enjoyed vacation leave, made a show in the service records that he was prevented from enjoying vacation leave. It is well-known that an employee belonging to vacation department would be entitled to get benefit of earned leave, unless he is prevented from enjoying vacation leave. The petitioner, though enjoyed vacation leave, made a show in the service records that he was prevented from enjoying vacation leave. Therefore, he got benefit of credit of earned leave as aforesaid, in accordance with the provisions made in the Bombay Civil Services Rules, 1959 and thereby committed the aforesaid offence. 3. 2 the fact was brought to the notice of the learned District Judge, Kheda at Nadiad and he directed that F. I. R. be filed against the petitioner. Accordingly, F. I. R. was filed. The offence was investigated and at the end of investigation, chargesheet was filed, which came to be registered as Criminal Case No. 1783/1987 before the learned Chief Judicial Magistrate, Nadiad. The petitioner was supplied with copies of police investigation papers. Charge was framed. The petitioner pleaded not guilty to the said charge and therefore, evidence was recorded. At the conclusion of evidence, further statement of the petitioner was recorded u/s. 313 of the Code of Criminal Procedure, 1973 (for short, "the Code" ). The petitioner contended that he had not committed any offence and had not made any erasers or overwriting in the service records. The learned Magistrate heard the arguments and found the petitioner guilty for the said offences. After hearing the petitioner on the quantum of punishment, the learned Magistrate inflicted the aforesaid punishment on the petitioner. ( 4 ) THE petitioner has, therefore, preferred this revision application u/s. 397 read with s. 401 of the said Code. It has been contended that the petitioner was a government servant and therefore, he could not have been prosecuted before the trial court, without a valid sanction of the Government u/s. 197 of the said Code. That, in the present case, no such sanction was procured or obtained by the prosecution, before prosecuting the petitioner and therefore, the entire proceedings against the petitioner stood vitiated and he may be acquitted on this single count alone. That, in the present case, no such sanction was procured or obtained by the prosecution, before prosecuting the petitioner and therefore, the entire proceedings against the petitioner stood vitiated and he may be acquitted on this single count alone. It is, further contended that there was no evidence before the trial court to connect the petitioner with the crime; that, it was not proved on record that the petitioner had made erasers and changes in his service records; that, even the evidence of handwriting expert was not acceptable and the trial court has committed serious error in depending upon the said material; that, even the bar of provision made in S. 195 of the said Code has not been properly considered by the two Courts below; that, the witnesses examined by the trial court were not reliable and the two courts below have committed serious error and illegality in depending upon the said witnesses; that, therefore, the judgment and conviction order recorded by the two courts below are illegal and perverse and deserve to be set aside. He therefore, prays that the present revision application be allowed, the judgments and conviction orders recorded by the two courts below may be set aside and the petitioner be acquitted of all the charges levelled against him. ( 5 ) ON receipt of the revision application, Rule was issued and in response to the service of notice of Rule, Mr. S S Patel learned APP has appeared for the State. I have heard learned advocates for the parties and they have taken me through the evidence, both oral and documentary. ( 6 ) AS stated above, the charge against the petitioner was that at the relevant point of time, he was working as an Accounts Clerk in the Civil Court at Kapadvanj in Kheda District. This point was not disputed during the course of hearing before this Court. Then, it has been alleged by the prosecution against the petitioner that during the year 1983, he enjoyed vacation leave and entries were posted accordingly in his service records; that, thereafter, he made erasers in such a way that it was shown from the service records that the petitioner did not enjoy vacation leave and that he was prevented from enjoying vacation leave and therefore, he was entitled to the benefit of earned leave. ( 7 ) NOW, the learned advocate for the petitioner has heavily relied upon the provisions made in s. 197 of the said Code in order to argue that the petitioner could not be prosecuted before the trial court without a valid sanction from the State Government. The relevant portion can be gathered from subsection 1 of s. 197 of the said Code, which may be reproduced for ready reference as follows; Section 197 : Prosecution of Judges and public servants.- (1) when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purpoting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government;"7. 1 now, on a bare reading of subsection 1 of s. 197 of the Code, it is amply clear that the persons covered by this section are those who are removable from their office save by or with the sanction of the Government. In other words, the provision made in s. 197 of the said Code will apply to accused persons who are removable from their office either with the sanction of the Government or by the Government itself. ( 8 ) MR. ANANDJIWALA has argued for the petitioner that the petitioner was a Government servant and therefore, he could be removed from office only by the Government or by the sanction of the Government and therefore, the petitioner was covered by the umbrella of s. 197 of the said Code. It is not possible to agree with the said argument of Mr. Anandjiwala. The reason is that the petitioner was never appointed by the State Government. It is not possible to agree with the said argument of Mr. Anandjiwala. The reason is that the petitioner was never appointed by the State Government. Here, we have to refer to the provisions made in the Rules applicable to the recruitment of the staff on the establishment of a District Court, namely, The Bombay Staff Civil Services Rules, 1957. The said Rules make it clear that the appointing authority is the District Judge and not the State Government. ( 9 ) EVEN otherwise, the petitioner belonged to Class III service in the State cadre and the appointing authority for Class III service would not normally be the Government. In the present case, it is the District Judge who is the appointing authority. In other words, it was not necessary that the petitioner be removed from service/office by the State Government. Same way, even the sanction of the State Government was not required for removing the petitioner from his office/service. In that view of the matter, the petitioner is not covered by the provision made in subsection 1 of s. 197 of the said Code. He can not get benefit of that revision. The trial would not stand vitiated on this count. ( 10 ) THE second contention raised by Mr. Anandjiwala is with respect to the provision made in s. 195 of the said Code. He can not get benefit of that revision. The trial would not stand vitiated on this count. ( 10 ) THE second contention raised by Mr. Anandjiwala is with respect to the provision made in s. 195 of the said Code. It would be relevant to consider the provision made in s. 195 of the Code, which may be reproduced for ready reference as follows;section 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- (a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some toher public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in S. 463, or punishable under S. 471, S. 475 or S. 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. " ( 11 ) THE learned advocate for the petitioner has argued that in view of the provision made in s. 195 of the Code, the petitioner could not be prosecuted without an order of the Court concerned. Now, it is required to be considered that the provision of s. 195 of the said Code will apply to the prosecution, for offences against public justice and for offences relating to documents given in evidence. Now, it is required to be considered that the provision of s. 195 of the said Code will apply to the prosecution, for offences against public justice and for offences relating to documents given in evidence. Even clause b (i) to subsection 1 of s. 195 of the said Code refers to "any proceeding in any Court". Subclause b (ii) of subsection 1 of s. 195 relates to an offence alleged to have been committed in respect of documents produced or given in evidence in a proceeding in any Court. Subclause b (iii) of subsection 1 of s. 195 also provides for abetment of the offences referred to hereinabove. This means that the question of applicability of s. 195 of the said Code will come into play, only when the records and documents in respect of which an offence is said to have been committed are the documents and records of the Court which have been tendered in evidence. Therefore, the documents which are tendered in evidence in judicial proceedings are covered by the provisions made in subsection 1 of s. 195 of the said Code. In other words, the administrative records of a District Court or of a Civil Court would not be covered by subsection 1 of s. 195 of the Code. ( 12 ) IN the present case, we find that the documents in respect of which the offence is said to have been committed are the administrative records of the Civil Court at Kapadvanj. They are the time books, service books and such other service records. The offences are not alleged to have been committed in respect of documents and records of judicial proceedings, produced by way of evidence. Therefore, the documents in respect of which the offence is said to have been committed, are the administrative records of the Civil Court and therefore, the provisions made in s. 195 of the Code will not apply and no judicial order of the Civil Court at Kapadvanj or of a District Court at Nadiad was required to be passed before prosecuting the petitioner. Therefore, the prosecution against the petitioner without an order of a Civil Court or of a District Court would not stand vitiated. ( 13 ) THEN, we can go to the factual data and evidence which has come on record. 13. Therefore, the prosecution against the petitioner without an order of a Civil Court or of a District Court would not stand vitiated. ( 13 ) THEN, we can go to the factual data and evidence which has come on record. 13. 1 pw-1 - Sirajmiya Amirmiya Qadri was working as a Clerk of the Court cum Registrar in the Civil Court at Kapadvanj at the relevant point of time. He has deposed before the trial court that the petitioner was transferred from Civil Court at Dakor to Kapadvanj, on account of District Court order dated 03/06/81. He has also deposed that the petitioner was working as an Accounts Clerk in the Civil Court at Kapadvanj. The witness has further deposed before the trial court that if any employee enjoys vacation, then, earned leave would not be credited and if he does not enjoy vacation and is prevented from enjoying vacation, then earned leave would be credited to his account. This is a provision flowing from Rule 434 of the Bombay Civil Services Rules, 1959. 13. 2 then, he has further deposed that during the course of vacation of May - June 1983, the petitioner applied for vacation on so many occasions and the said vacation leave was granted to him. He has produced those vacation leave reports prepared, written and signed and submitted by the petitioner himself from Ex. 38 onwards. He has proved that these documents have been signed and written by the petitioner. 13. 3 the witness was the immediate superior clerical officer of the petitioner and therefore, the witness could naturally identify the hand writings and signatures of the petitioner and accordingly, he has produced and proved the hand writings of the petitioner in those vacation leave reports. This would prove that the petitioner had enjoyed vacation leave during the period of May - June, 1983. 13. 4 then, the witness has further stated in Ex. 44 that the petitioner was shown to be on vacation leave during the dates stated in that para. The witness has further deposed that the petitioner had enjoyed vacation leave during May-June, 1983. The witness has further stated that as per practice, a person on vacation leave is shown as v in muster roll indicating that the person is on vacation leave. The witness has further deposed that the petitioner had enjoyed vacation leave during May-June, 1983. The witness has further stated that as per practice, a person on vacation leave is shown as v in muster roll indicating that the person is on vacation leave. The witness has proved that the petitioner was on vacation leave on number of occasions as indicated by him during the course of his evidence. The said evidence is supported by the evidence of vacation leave reports and entries made against the name of the petitioner in time book and muster roll. This conclusively proves that the petitioner was on vacation leave during May - June, 1983 as alleged against him. Then, the witness has further deposed in para 19 of his evidence that in the service book of the petitioner, muddammal article no. 2, there is an eraser with respect to the leave at balance. He has also stated that the original portion was struck off and instead, it has been shown that the petitioner was prevented from enjoying vacation leave for 42 days. Now, it is his evidence that ordinarily the vacation leave consists of 42 days. It is his evidence supported by documentary evidence that the petitioner enjoyed vacation leave for certain days in May - June, 1983. Therefore, the petitioner would not have been prevented from enjoying vacation leave for all the 42 days and yet the old entries have been struck off and new entries show that the petitioner was prevented from enjoying the entire vacation of 42 days. This is an ex-facie incorrect statement of fact. The witness has positively deposed that the eraser and entry of 42 days preventing vacation has been made by the petitioner himself. He has also deposed that the vacation leave enjoyed shows blank and a line has been shown there indicating that the petitioner had not enjoyed any vacation leave. The witness has positively stated that the writings were those of the petitioner. Moreover, the entry has been certified by the Presiding Officer of the Court. The said document has been produced and proved by him at Ex. 61. 13. 5 an attempt was made to show that the service book was in the custody of the clerk of the court. Moreover, the entry has been certified by the Presiding Officer of the Court. The said document has been produced and proved by him at Ex. 61. 13. 5 an attempt was made to show that the service book was in the custody of the clerk of the court. The witness has deposed in para 20 of his evidence that the service book used to remain in custody of the Accounts Clerk and the petitioner was admittedly an Accounts Clerk and therefore, the service book used to remain in his custody. 13. 6 then, the witness has also stated that some work required to be done by the petitioner was actually done by the witness and by other employees, since the petitioner was on vacation leave. This further shows that the petitioner was actually on vacation leave for certain days during May - June, 1983. 13. 7 efforts were made to show that the service book used to remain in a wooden box and its keys used to remain with someone else. The witness has denied the said position and has reiterated that the keys used to remain with the Accounts Clerk i. e. the petitioner. 13. 8 an attempt was made to show that the Civil Judge used to check the service book and not the C. O. C. . The witness has agreed that the checking of service book remained with the Civil Judge and not with the C. O. C. . At the same time, it is a fact that whenever entries were required to be certified, they would be placed before the Civil Judge, through the C. O. C. . Here, in the present case, the witness has positively deposed before the trial court that correct entries were posted in the leave account of the petitioner as said above. The petitioner was serving directly under the witness and therefore, the witness was in a position to know the hand writings and signatures of the petitioner. Therefore, the evidence of this witness that he was able to identify the signatures and hand writings of the petitioner was rightly accepted by the two Courts below. ( 14 ) IT is required to be seen that the petitioner has not disputed this position before the trial court, during the course of cross-examination of the witness. Therefore, the evidence of this witness that he was able to identify the signatures and hand writings of the petitioner was rightly accepted by the two Courts below. ( 14 ) IT is required to be seen that the petitioner has not disputed this position before the trial court, during the course of cross-examination of the witness. Moreover, it has not come on record that the witness was unable to identify the hand writings and signatures of the petitioner. ( 15 ) THE evidence of the witness has been amply supported by his F. I. R. which gives details as to the role played by the petitioner in the commission of the offence. ( 16 ) THEN, there is the evidence of Shri Babulal Himmatlal Shah who was working as a Civil Judge, Junior Division in the Civil Court at Kapadvanj at the relevant point of time. He has deposed that the disputed entries at Ex. 61 bear the hand writings of the petitioner. Now, the petitioner was working as an Accounts Clerk and the witness as a Civil Judge. In that case, it has to be accepted that the witness, Mr. Shah, was in a position to identify the hand writings and signatures of the petitioner. 16. 1 it may be considered that the petitioner may not have occasions to write or sign in presence of this witness, but the papers bearing his signatures and hand writings would be placed before this witness very often and therefore, the learned Civil Judge would be in a position to identify the hand writings of the petitioner. Moreover, the very entry Ex. 61 has already been proved during the evidence of the Clerk of the Court, Mr. Qadri. Therefore, the evidence of Mr. Shah with respect to the hand writings in Ex. 61 lands corroboration to the testimony of the Clerk of the Court, Mr. Qadri. 16. 2 an attempt was made to cross-examine Mr. Shah with a question as to whether Mr. Shah could identify the hand writings of all those who served under him, on the strength of his memory. The witness has replied that he could not say so without seeing the hand writings. This would mean that he would be able to identify the hand writings of some persons. 16. Shah with a question as to whether Mr. Shah could identify the hand writings of all those who served under him, on the strength of his memory. The witness has replied that he could not say so without seeing the hand writings. This would mean that he would be able to identify the hand writings of some persons. 16. 3 naturally, if the hand writings of a particular person are placed before him on a fewer occasions, then the witness might not be in a position to identify the same. But, in case of an Accounts Clerk, like the present petitioner, if the hand writings were required to be placed before the witness very often, then naturally, he would be in a position to identify the same. Anyway, his evidence clearly supports the evidence of Mr. Qadri and the case of the prosecution. 16. 4 mr. SHAH was after all a Civil Judge at the relevant point of time. He had no reason to give a false evidence against the petitioner. The trial court was justified in relying upon the evidence of Mr. Shah which supports the evidence of Mr. Qadri. Therefore, the trial court was also justified in accepting the evidence of Mr. Qadri also. ( 17 ) THE third witness on whom reliance was placed on behalf of the petitioner is Vikrambhai Chimanlal Thakkar who was working as a Junior Clerk in the Civil Court at the relevant point of time. This witness has stated that the erasers had come to his notice and he had conveyed the position to the clerk of the Court. He has also proved the hand writings of the petitioner in the aforesaid entry. ( 18 ) EFFORTS were made to show that this witness was not on good terms with the petitioner. The witness has denied this suggestion. There appears to be some dispute between the witness and the petitioner. But, it seems that the so called dispute between them, was not such that the witness would fast create and then give false evidence against the petitioner. More so when the evidence of the prosecution against the petitioner consists of Mr. Qadri and Mr. Shah and the evidence at Ex. 73 clearly supports the evidence of the said two witnesses. ( 19 ) THEN there is the evidence of PW-4 - Kaushikkumar Poonjalal Vyas Ex. 74 who was working as Asst. More so when the evidence of the prosecution against the petitioner consists of Mr. Qadri and Mr. Shah and the evidence at Ex. 73 clearly supports the evidence of the said two witnesses. ( 19 ) THEN there is the evidence of PW-4 - Kaushikkumar Poonjalal Vyas Ex. 74 who was working as Asst. Examiner of Documents. An attempt was made to argue that the enlarged photographs of the disputed documents were applied for by the petitioner, but, despite the order of the Court, they were not supplied to the petitioner by the investigating police officer. Now, even if we accept this position, then also, it is not on record as to whether the petitioner pursued the matter with the Court and requested the Court to supply the documents before commencement of trial or at the stage of examination of the witness. The evidence of this witness clearly supports the case of the prosecution and it has come out during the evidence of this witness that the disputed documents bear the hand writings and signatures of the petitioner. ( 20 ) AFTER all, the evidence of this witness is a corroborative piece of evidence. Even if we ignore the evidence of this witness, then there is the evidence of Mr. Qadri and Mr. Shah apart from the evidence of Mr. Thakkar as referred to hereinabove. Therefore, there is sufficient evidence on record to show that the disputed entry at Ex. 61 has been made by the petitioner. It seems that a razor blade was used for removing the old entry and new entry has been substituted in place thereof. The above witnesses have clearly deposed that these entries bear the hand writings of the petitioner. .