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2013 DIGILAW 1963 (RAJ)

Hari Singh Bhandari v. State of Rajasthan

2013-11-09

NISHA GUPTA

body2013
JUDGMENT 1. - Both these two petitions arise out of a common order and between the same parties, hence decided by this common order. The facts are taken from SB Cr. Misc. Pet. No. 60/2011. 2. This petition has been filed against the order dated 4.12.2004 passed by Additional Chief Judicial Magistrate, Mahawa, Distt. Dausa whereby cognizance has been taken against the petitioner. 3. The relevant facts of the case are that complainant Babulal filed a criminal complaint on the averment that his uncle lodged an FIR No. 118/2001 at Police Station Halena, Distt. Bhatarpur for offence under Sections 147, 323, 341 and 379 IPC and complainant further alleged in the complaint that to save co-accused Hari Singh S/o Ram Dayal, the Doctor petitioner prepared a forged certificate dated 12.6.2001 by which it was shown that accused Hari Singh was hospitallized on the day of occurrence and on the basis of this forged document, Hari Singh was not charge-sheeted in FIR No. 118/2011. The contention of the complainant is that both the accused has forged the document and the complaint was sent for investigation under Section 156(3) Cr.P.C., and after completion of investigation, final report was filed. Protest petition was filed by the complainant. Cognizance has been taken against the present petitioner after enquiry under Section 200 Cr.P.C., revision has also been dismissed, hence this petition. 4. The contention of the present petitioner is that earlier on the same facts, FIR No. 118/2011 has been filed, hence second FIR is barred. The court below has not considered the reasons on which negative final report has been submitted by the police and it is also argue that Dr. Hari Singh, petitioner is public servant and hence protected under Section 197 Cr.P.C.Per contra, the contention of the Public Prosecutor is that this is not the second FIR as it is outcome of FIR No. 118/2001 which has been adversely effected by placing the forged document and after investigation, it was found that Dr. Hari Singh, petitioner is public servant and hence protected under Section 197 Cr.P.C.Per contra, the contention of the Public Prosecutor is that this is not the second FIR as it is outcome of FIR No. 118/2001 which has been adversely effected by placing the forged document and after investigation, it was found that Dr. Hari Singh has prepared a forged document in favour of accused Hari Singh, hence the present FIR is totally on new facts and allegations; and his further contention is that reasons for giving the final report has been dealt with by the court below at length and no protection under Section 197 Cr.P.C., could be granted as by no stretch of imagination, it can be said that making a forged document is an act purporting to be done in discharge of duties. 5. Heard the learned counsel for the petitioner, learned Public Prosecutor and counsel for the respondent and perused the material on record. 6. There is no dispute about the fact that earlier, an FIR No. 118/2001 has been lodged for the offence under Section 147, 323, 341 and 379 IPC etc. and no allegation about the forged document could be incorporated in that FIR as during the investigation of FIR No. 118/2001, the forged certificates have been prepared by Dr. Hari Singh and has been used for other accused Hari Singh. Hence contention of the present petitioner that this is second FIR on the same facts is not acceptable. 7. The other contention of the petitioner is that learned court below has not considered the grounds on which final report has been filed. The bare reading of the order passed by the court below dated 4.12.2004 speaks itself that a detail order has been passed after considering the relevant facts and circumstances of the case and reasons have been recorded not to accept the final report, hence the contention of the present petitioner that reasons for placing the final report has not been dealt with seems to be unsustainable.The other contention of the present petitioner is that before taking cognizance against petitioner Dr. Hari Singh, sanction under Section 197 Cr.P.C. is needed and reliance has been placed on Anil Kumar & ors. v. M.K. Aiyappa & Anr., Cr. Hari Singh, sanction under Section 197 Cr.P.C. is needed and reliance has been placed on Anil Kumar & ors. v. M.K. Aiyappa & Anr., Cr. Appeal No. 1590-1591/2013 decided on 1.10.2013 which was in reference to Prevention of Corruption Act and specific Section 19 is there which bars cognizance before previous sanction. Further reliance has been placed on Abdul Wahab Ansari v. State of Bihar & Anr., (2000) 8 SCC 500 and Birendra K. Singh v. State of Bihar, (2000) 8 SCC 498 . 8. Per contra, the contention of the counsel for the complainant is that offence of cheating and forgery of the documents cannot be said to be done while acting or purporting to act in discharge of his official duties and reliance has been placed on Om Kr. Dhankar v. State of Haryana & Anr., 2012 (1) WLC (SC) Cri. 667 wherein it was held: "The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence" Further reliance has been placed on Raj Kishor Roy v. Kamleshwar Pandey & Anr., 2002 (2) WLC (SC) Cri. 321 wherein it has been held:- "The question whether these acts were committed and/or whether 1st Respondent acted in discharge of his duties could not have been decided in this summary fashion. This is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in the official course of his duty. The question whether the 1st Respondent acted in the course of performance of duties and/or whether the defence is pretended or fanciful can only be examined during the course of trial. In our view, in this case the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of trial." 9. In view of the above, the objection as regards to sanction under Section 197 Cr.P.C., is not sustainable. In our view, in this case the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of trial." 9. In view of the above, the objection as regards to sanction under Section 197 Cr.P.C., is not sustainable. There is no infirmity in the impugned order by which cognizance has been taken against the petitioner.Hence both these petitions are dismissed.Petition allowed. *******