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2012 DIGILAW 908 (BOM)

Harshkumar Khare v. State of Maharashtra

2012-05-02

ABHAY M.THIPSAY

body2012
JUDGMENT By this Petition, under Articles 226 and 227 of the Constitution of India, the Petitioner prays that by an appropriate Writ, Order or directions, the criminal proceedings pending before the J.M.F.C. Kalyan vide Regular Criminal Case No.434 of 2009 in which the Petitioner is an Accused, be quashed. 2. I have heard Mr.Ravindra Adsure, the learned Advocate for the Petitioner and Mr.R.S. Apte the learned Senior Advocate for the Respondent no.2. I have also heard Mr. J.P. Kharge, the learned Additional Public Prosecutor for the State-Respondent no.1. 3. A complaint was lodged by Respondent no.2 herein against the Petitioner (mentioned as Accused No.2 in the said complaint) and his mother Geeta Rajesh Khare (Accused no.1 therein). The complaint alleged that the accused persons had committed offences punishable under sections 417 IPC, 420 IPC, 464 IPC, 466 IPC, 468 IPC,471 IPC and 474 IPC. It was prayed in the said complaint that investigation, as contemplated under section 156(3) of the Code of Criminal Procedure (hereinafter referred to as 'the Code) be ordered and a case be registered against both the Accused persons. By an order dated 1.12.2007, the learned Magistrate directed the police to investigate into the case pursuant to which, the matter was investigated into and on completion of investigation, a report under Section 173(2)(i) of the Code was submitted by the police to the learned Magistrate, on the basis of which the said case has been registered. 4. It is contended by Mr.Ravindra Adsure, the learned Advocate for the Petitioner that there is absolutely no case against the Petitioner. It is submitted, that the Petitioner is a bright student and that after having obtained a degree of B.E, he is pursuing the post Graduate course of M.E. which is on the verge of completion. It is also submitted that the Petitioner intends to pursue a career in Indian Administrative Services and is presently making preparations for the UPSC exams. It is submitted that the complaint has been lodged maliciously and has no substance. On these and other grounds, it is prayed that prosecution of the Petitioner vide the said Criminal case be quashed in the interest of justice. 5. Mr.R S.Apte, the learned Senior Advocate for the Respondent No.2, on the other hand, submitted that meritorious career of the Petitioner is, by itself, not a ground for quashing the criminal proceedings. On these and other grounds, it is prayed that prosecution of the Petitioner vide the said Criminal case be quashed in the interest of justice. 5. Mr.R S.Apte, the learned Senior Advocate for the Respondent No.2, on the other hand, submitted that meritorious career of the Petitioner is, by itself, not a ground for quashing the criminal proceedings. He submitted that the police report and the accompanying documents clearly show that there is a prima facie case against the Petitioner and that therefore, there is no question of quashing the prosecution at this stage. He also submitted that the Petition has been filed belatedly i.e. after a gap of two years from the date on which the petitioner became aware of the said prosecution and that the Petitioner is guilty of latches. It is submitted that the Petition, therefore, deserves to be dismissed. 6. It would be necessary to examine the nature of allegations against the Petitioner and other Accused i.e. his mother Geeta. 7. The original complaint which was made before the Magistrate by the Respondent no.2 mentions that the Respondent no.2 (hereinafter referred to as 'the Complainant') and the Accused persons are residents of Dombivli, and that there are serious family disputes between them. That, on 25.11.2007 at about 9 p.m.,the Complainant and his cousin Narayan Pathare were standing near the building where they reside. That, one Jitendra Roy and the Petitioner came there and fired at the said Narayan with an intention of killing him. Narayan was also assaulted by a knife. The complainant therefore, reported the matter to the Police on the basis of which, a case in respect of offences punishable under sections 307 IPC, 326 IPC read with section 34 of IPC and section 109 of IPC together with offences punishable under the Arms Act were registered and the Petitioner was arrested by the police. That, after the Petitioner was arrested, his mother (Accused no.1-Geeta) came to the police station and produced the School Leaving Certificate of the Petitioner. In that certificate, the date of birth of the Petitioner was mentioned as "29.11.1989 ". 8. As per the said date, the Petitioner appeared be a juvenile and therefore, was produced before the Juvenile Court. That, after the Petitioner was arrested, his mother (Accused no.1-Geeta) came to the police station and produced the School Leaving Certificate of the Petitioner. In that certificate, the date of birth of the Petitioner was mentioned as "29.11.1989 ". 8. As per the said date, the Petitioner appeared be a juvenile and therefore, was produced before the Juvenile Court. When the Complainant learnt about this, he started making enquiries about the date of birth of the Petitioner and learnt that the real date of birth of the Petitioner is 29.11.1988; and that the Accused no.1 Geeta had got the same changed in the school records, on the strength of a false affidavit which was given to the school authorities in the year 1999. After getting this information, the Complainant obtained the birth certificate of the Petitioner from the Kalyan Dombivli Municipal Corporation showing the correct date of birth of the Petitioner. After the Complainant had produced the same before the police, the police produced the Petitioner before the regular Criminal Court. The Complainant was thus convinced that though the Petitioner was born on 29.11.1988, the date of birth of the Petitioner was got changed by Accused no.1 on the basis of a false affidavit by getting the school records tampered with. That, such a false School Leaving Certificate was obtained and inspite of knowing it to be false, it was used for taking undue advantage by handing it over to the police and thus an attempt to mislead the police had been made. 9. The facts of the case as mentioned in column No.16 of the printed prescribed proforma of the police Report are similar. In other words, the allegations levelled in the Complaint have been found to be correct, as a result of the investigation. In the Police report also, it is mentioned that Accused no.1 Geeta Khare, had prepared false affidavit in respect of the date of birth of the Petitioner and it is on the basis of a claim made in the said affidavit, that his date of birth was 29.11.1989, that the date of birth of the Petitioner was got changed in the school records. The Police Report also mentions that Accused no.1 Geeta Khare exerted pressure on the Headmistress Smt. Revati Iyer for getting the school records changed. That, such document and forged School Leaving Certificate was used by the accused persons. 10. Mr. The Police Report also mentions that Accused no.1 Geeta Khare exerted pressure on the Headmistress Smt. Revati Iyer for getting the school records changed. That, such document and forged School Leaving Certificate was used by the accused persons. 10. Mr. Ravindra Adsure, learned Advocate for the Petitioner contended that these allegations against the Accused persons and particularly against the Petitioner were false. It was contended further that the prosecution has been actuated by malafides. He submitted that the peculiar circumstances in which the Complaint came to be lodged may be taken into consideration. According to him, one Shivajirao Jondle who is the father of the Complainant and Smt. Geeta Khare were having illicit relationship. The Petitioner is born to Geeta from her husband Rajesh Khare. Because of the illicit relationship between the Complainant's father and the Petitioner's mother, naturally there is enmity between these two familities. An attempt was made to suggest that the change in the date of birth of the Petitioner was actually effected by the headmistress Smt.Revati Iyer in order to falsely implicate the Petitioner and his mother, at the instance of the Complainant. 11. I have considered the matter. 12. It must be made clear that, that the change of date in the school records was effected by the headmistress Smt Revati Iyer at the instance of the complainant; and for falsely implicating the Petitioner and his mother, cannot be accepted at this stage. Apart from the fact that such factual aspects cannot be gone into while exercising Jurisdiction under Articles 226 and 227 of the Constitution of India, even otherwise, such a contention cannot stand on the face of the facts of the case as reflected from the Police Report and the accompanying documents. 13. The Police report as well as the Affidavit-in-reply filed by the Investigating Officer, clearly show that the change in the date of birth was effected in the year 1999 itself and that, it was on the basis of the Affidavit submitted by the Petitioner's mother Geeta Khare. These assertions can be contradicted or challenged in the course of trial and not at this stage. These assertions can be contradicted or challenged in the course of trial and not at this stage. At this stage, therefore, one has to proceed on the basis that indeed the mother of the Petitioner had, by giving false affidavit stating the date of birth of the Petitioner to be " 1989 ", got the said change effected in the school records and obtained a School leaving certificate on the basis of said untrue or incorrect record. 14. The question, however, is whether the entire police report and the documents accompanying it, taken at face value, disclose commission of any offences by the Petitioner. 15. The case is that a false Affidavit was given and the date of birth of the Petitioner was got changed sometime in the year 1999. At that time, admittedly, the Petitioner was below 12 years of age. There is no allegation that this false Affidavit was filed by the Accused no.1 Geeta Khare in furtherance of a common intention that had been formed by her and the Petitioner. Even otherwise, such an assertion would be baseless and rather absurd for two reasons. The first is the relationship between the parties which makes it quite possible that the alleged dishonest act was done by her for the benefit of her son, and therefore merely because the son would be benefitted by such an act, it cannot be presumed that he also must have shared the requisite intention. The second is that the age of the petitioner at that time was less than 12 years and therefore it is unlikely that the mother would feel it necessary or desirable to consult him, or ascertain his view in that regard. The least that can be said is that, that the petitioner was consulted and he agreed for any such act, cannot be presumed. 16. The fact about the school record containing a false/wrong date of birth of the Petitioner and that the school leaving certificate produced before the police not containing the correct date of birth of the Petitioner came to light only after a school leaving certificate containing a wrong date of birth had been produced before the police. 17. 16. The fact about the school record containing a false/wrong date of birth of the Petitioner and that the school leaving certificate produced before the police not containing the correct date of birth of the Petitioner came to light only after a school leaving certificate containing a wrong date of birth had been produced before the police. 17. The School leaving certificate was produced by Accused no.1 Geeta when the Petitioner came to be arrested in a case lodged on the basis of a report made by the present Complainant about the Petitioner and Jitendra Roy having attempted to commit murder of the Complainant's cousin. It is clear, going by the material in the police report and accompanying documents, that this was dishonestly done for the purpose of showing that the Petitioner was a juvenile. If the Petitioner would be a juvenile, he would be dealt with in an entirely different manner in respect of the offences allegedly committed by him and therefore, apparently, it was to have the benefit of the provisions of the Juvenile Justice Act that the School Leaving Certificate containing the wrong date of birth was produced before the police. However, admittedly, the same was produced only by accused no.1 Geeta. It was not produced by the Petitioner, who, admittedly, at that time, was in custody. Merely because the benefit of the wrong date of birth mentioned in the said school leaving certificate accrued (or would have accrued) to the Petitioner, it cannot be said that he had used the same for making a bogus claim about his date of birth. The accused no.1 Geeta being the mother of the Petitioner was naturally interested in his welfare and therefore merely because the ultimate benefit would have accrued to the Petitioner, it cannot be said that he had 'used' the said 'forged' School Leaving certificate. 18. To overcome this deficiency in the prosecution case against the Petitioner, and in an attempt to show the involvement of the Petitioner in the alleged offences, Mr.Apte the learned Senior Advocate changed the focus from the incident of production of the said School Leaving Certificate before the police, to the general use of the School Leaving Certificate,allegedly made by the Petitioner on several other occasions. He contended that the Petitioner ought to have known his correct date of birth and the very fact that the School Leaving certificate containing such a wrong date had been used by the Petitioner from time to time for securing admissions to various educational courses indicates that he is also a party to the offences in question. Much emphasis is placed on the fact that the Petitioner never attempted to get the date of his birth as reflected in the school leaving certificate and other records,corrected. 19. I am not impressed by these contentions 20. Firstly, the date of birth of a person cannot be, strictly speaking, said to be 'within his personal knowledge.' A person derives knowledge of his date of birth from his parents or other elders and/or on the basis of some record, which again is based on information of his date of birth given by his parents, etc. 21. A person simply believes his date of birth to be the one as said to him by his parents, or, as the case may be, by other elders and accepts the same as a fact. When the date of birth of a person is changed by his parents, it would be difficult to say that such person was aware of his real date of birth. Ordinarily, there would be no means with him of knowing which of the two dates of birth is correct and there is no reason for a person to doubt the correctness of his date of birth as 'corrected' by his parent. Moreover, when such change is effected only by an affidavit of the parent, the child may not even be aware that his date of birth has been changed. In the present case, as the Petitioner was less than 12 years of age, it is doubtful whether he had any knowledge as to what was the record of his date of birth. At least, it is not clear. 22. The Petitioner cannot be expected to have known that the so called "corrected date " was actually a false date and that this had been dishonestly done by his mother. The Petitioner's not attempting to change the date of birth as given by his mother to the school authorities, therefore, is no basis for drawing an inference that it had been done in furtherance of the common intention of his and his mother. The Petitioner's not attempting to change the date of birth as given by his mother to the school authorities, therefore, is no basis for drawing an inference that it had been done in furtherance of the common intention of his and his mother. 23. Secondly, there has been no use of the said document by the Petitioner which can be termed as fraudulent or dishonest. Even as per the prosecution case, the alleged 'forgery' was not done by the Petitioner or that the alleged deception was not practiced by him. 24. From the tenor of the Police report and the penal provisions mentioned therein, as also from the arguments advanced, it becomes necessary to consider whether, on the material before the Court, an accusation that the Petitioner had 'used' or 'has been using as genuine a forged document' can be properly levelled. This, on the supposition that the School Leaving Certificate containing the wrong Date of birth is a forged document. How this supposition itself is wrong, shall be discussed later, but, even assuming that the School Leaving Certificate in question, can be termed as a forged document, it needs to be kept in mind that it is only when the use thereof would be either 'fraudulent' or 'dishonest' that the penal provisions would be attracted. 25. It is not the case of the Prosecution that the Petitioner secured any benefit or advantage by reason of the wrong date of birth reflected in the School Leaving Certificate except on one occasion i.e. when it was submitted by the police after his arrest as discussed earlier. For that incident and the use on that occasion, the petitioner is not responsible. With respect to the 'use' on other occasions, had it been the case that the petitioner secured some advantage or benefit by reason of the wrong date, which he would not have been able to get, had the correct date been mentioned therein, then there would be some basis for claiming that the Petitioner has used a false document dishonestly and/or fraudulently. Such is not the case here. Therefore, even if documents showing a wrong date of birth have been tendered by the Petitioner while seeking admission to various courses, it cannot be said that he has thereby committed any offences. 26. Such is not the case here. Therefore, even if documents showing a wrong date of birth have been tendered by the Petitioner while seeking admission to various courses, it cannot be said that he has thereby committed any offences. 26. Thus, there is no prima facie case against the Petitioner even with respect to the alleged use or any forged documents, in as much as, the requisite Mens Rea on his part is not even alleged, much less indicated by any material in the police report. 27. There is yet another aspect of the matter. Though the School leaving certificate containing a wrong date of birth of the Petitioner is referred to as 'forged document' whether it indeed is such, is extremely doubtful to say the least. 28. The offence of forgery has been defined in section 463 of IPC, the essence of which is 'making any false document'. When a person is said to make a false document, is found in section 464 of IPC, the substance of which is - the making of a document purporting to have been made by another. Merely because a document contains a false statement or false recitals it does not become a 'false document' in law. 29. Here, it is not the case that the School Leaving certificate has not been issued by the School Authorities, or that the same has been tampered with. The allegation is even not that it is not in conformity with school records as existed when the School Leaving certificate was issued. The case is that the School records themselves show a wrong date of birth. This was a result of the false representation of the date of birth allegedly made by the Petitioner's mother Geeta to the School Authorities. Once this change in the School records had taken place, the School Leaving Certificate issued by the appropriate authorities of the school would be naturally in conformity with such a record, and though the date of birth mentioned therein may be wrong, such a Certificate cannot be called to be a 'false' or 'forged document.' 30. That, the contents of a particular document are not true or correct, or that they do not reflect the correct position, would not, by itself, be sufficient to claim such a document to be forged. That, the contents of a particular document are not true or correct, or that they do not reflect the correct position, would not, by itself, be sufficient to claim such a document to be forged. As aforesaid, the intention of causing it to be believed that such a document was made, signed or executed by a person or authority by whom it was not made, signed, or executed is the essence of the offence of forgery. 31. In other words, had the case been that the Leaving certificate had not been issued by the School Authorities at all, then it would have been a case of using a forged document. It may incidently be observed that in such a case even if the date of birth would be correctly shown, it would still be a false document and the use thereof, if done dishonestly or fraudulently, would amount to using a forged document. 32. What emerges from the aforesaid discussion about the case against the Petitioner is as follows : (i) The Petitioner was actually born on 29.11.1988. (ii) His date of birth was accordingly registered in the school correctly. (iii) In the year 1999, the Petitioner's mother gave an affidavit affirmed by her mentioning that the Petitioner's date of birth was 29.11.1989 and accordingly the date of birth of the Petitioner was corrected as "29.11.1989". (iv) The Petitioner was about 11 years and 7 months old at that time. (v) There is no allegation that the change was got effected by the Petitioner's mother Geeta by consulting the Petitioner. Even otherwise, it is unlikely, considering the age of the Petitioner at that time. (vi) Though the School leaving Certificate showing the Petitioner's date of birth as "29.11.1989" might have been submitted by the Petitioner or his mother, to various educational and college authorities while securing admissions for various educational courses, there is nothing to show that any benefit or advantage has been procured by the Petitioner, or his mother on account of such a wrong date of birth. In other words, no benefit or advantage which the Petitioner or his mother could not have secured, but, for the wrong date of birth mentioned in the School leaving Certificate, is neither alleged or indicated. In other words, no benefit or advantage which the Petitioner or his mother could not have secured, but, for the wrong date of birth mentioned in the School leaving Certificate, is neither alleged or indicated. (vii) The certificate was prima facie, dishonestly used only when the Petitioner was arrested in C.R.No.197 of 2007 on the basis of a report lodged by the present Complainant. This time use of the said school leaving certificate was dishonest and fraudulent in as much as the benefits likely to result from treating the Petitioner as a juvenile were sought to be obtained by such a use. (viii) However, such a use of the certificate was made not by the Petitioner but by his mother Geeta Accused no.1. The Petitioner was in custody at that time. (ix) Merely because the Petitioner might have been benefited by the wrong date of birth shown in the said School Leaving Certificate, it cannot be said that the Certificate was used in furtherance of any common intention between him and his mother. 33. Thus, there exists no prima facie case of any offences against the Petitioner. 34. Before parting, two contentions advanced by Mr.R.S.Apte learned Senior counsel for the Respondent no.2 need to be dealt with. 35. It was submitted that the Petitioner had approached this Court directly without resorting to other effective and efficacious remedies. Though it is true that the Petitioner could have very well invoked the Revisional Jurisdiction of the Sessions Court or even of this Court, the fact remains that existence of such an alternative remedy is not a bar for exercising the Constitutional jurisdiction available to this Court. That a party must exhaust the statutory remedies before filing a Writ Petition is a rule of policy and convenience, rather than a rule of law. The Writ Jurisdiction is discretionary and therefore, this Court may decline to entertain a Writ Petition where an alternative statutory remedy which has not been availed of would be available to a party. However, in appropriate cases, a Petition can be entertained even if the statutory alternative remedy is not availed of by a party before invoking the Constitutional jurisdiction of this Court. The Rule regarding interference in Constitutional or Inherent jurisdiction where an alternative remedy would be available to a party is not a rule affecting jurisdiction of this Court to exercise the Constitutional and Inherent powers. 36. The Rule regarding interference in Constitutional or Inherent jurisdiction where an alternative remedy would be available to a party is not a rule affecting jurisdiction of this Court to exercise the Constitutional and Inherent powers. 36. In the instant case, the Petition was listed on Board on several occasions and orders had been passed at the initial stage itself, that the Petition be listed for final hearing. It would not be proper to refuse to exercise the Constitutional jurisdiction and direct the Petitioner to avail of other statutory remedies at this point of time. Even otherwise, in the peculiar facts and circumstances of the case, it would be proper to exercise Constitutional and inherent powers of this court rather than declining to exercise the same on the ground of availability of an alternative remedy. 37. It may be observed that the school leaving certificate was used in connection with arrest and prosecution of the Petitioner in C.R.No.197 of 2007, which it may be recalled, was on a report lodged by the Complainant i.e Respondent no.2 herein. It is not in dispute that the said complaint was found to be false qua the Petitioner. It is not in dispute that the investigating agency has already filed a report for releasing the Petitioner and another accused in the said case under section 169 of the Code of Criminal Procedure. 38. In the background of the apparently bitter disputes between the Complainant and the Petitioner, which are also reflected from the manner in which the Complainant pursued his private inquiries with respect to the actual date of birth of the Petitioner, it would be in the interest of justice to permit the Petitioner to avail of the remedy of approaching this court rather than throwing him out on the ground of availability of an alternative remedy. 39. Mr. R.S. Apte learned Senior counsel for the Respondent no.2 also submitted that the Petitioner is guilty of delay and latches and is not entitled to any discretionary relief from this Court. 40. Whether the Petitioner, in a given case, has been guilty of delay and latches would depend on the facts of each case. 41. Mr. Ravindra Adsure, learned counsel for the Petitioner submitted that the Petitioner being busy in pursuing his meritorious academic career,could not approach this court immediately, but has approached this Court at the earliest possible opportunity. 42. 40. Whether the Petitioner, in a given case, has been guilty of delay and latches would depend on the facts of each case. 41. Mr. Ravindra Adsure, learned counsel for the Petitioner submitted that the Petitioner being busy in pursuing his meritorious academic career,could not approach this court immediately, but has approached this Court at the earliest possible opportunity. 42. I find that the Petitioner has got his date of birth corrected by getting it published in the Official Gazette. This correct date of birth has been published in the Official Gazette on 25.8.2011. The Petition has been filed on 18.10.2011. The Petitioner was, it appears, waiting till his date of birth was officially got corrected by publishing the same in the Official Gazette and after the same was done, has approached this Court. The Petitioner cannot be said to be wrong in thinking that this court should be approached for necessary reliefs only after getting the said date of birth corrected. Otherwise, it could have very well been said, that the petitioner has not approached this court with clean hands. 43. Under these circumstances, considering that the Petitioner is still a student, that he has no independent source of income and that he has approached court soon after the date of birth was got corrected by publication in the Official Gazette, it cannot be said that the petitioner is guilty of any delay or latches which would disentitle him for the reliefs sought for. 44. This is a case where the uncontroverted allegations made in the original Complaint or the FIR and police report do not disclose commission of any offence or offences by the Petitioner. They merely disclose commission of offences by his mother Geeta Accused no.1. The allegations, at the highest, show only that the Petitioner's mother Geeta had committed the alleged offences so that some benefit or advantage may accrue to the petitioner but that is wholly insufficient to hold the Petitioner to be a party to such offences. Further, initiation of the prosecution so far as it relates to the petitioner is apparently attended with malafides. There is basis for presuming that the process of criminal law is being used for wreaking vengeance and for settling personal scores. 45. Nevertheless, there is a case for proceeding against the mother of the Petitioner but certainly not against the Petitioner. Further, initiation of the prosecution so far as it relates to the petitioner is apparently attended with malafides. There is basis for presuming that the process of criminal law is being used for wreaking vengeance and for settling personal scores. 45. Nevertheless, there is a case for proceeding against the mother of the Petitioner but certainly not against the Petitioner. To permit the prosecution against the Petitioner to be continued, when there is no material justifying the accusation, or supporting the same in any manner, and that too when the prosecution appears to have been initiated maliciously -not out of the sense of any injustice but for the purpose of wreaking vengeance on account of the personal grudge this Court must interfere and quash such unjust and improper prosecution. 46. Petition is, therefore, allowed. 47. The proceedings pending before the J.M.F.C. Kalyan vide Regular Criminal Case No.424 of 2009, so far as they relate to the Petitioner, are quashed. 48. The learned Magistrate shall proceed further with the case in accordance with law. Rule is made absolute in the aforesaid terms.