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2015 DIGILAW 889 (RAJ)

Nathi Devi v. State of Rajasthan

2015-04-21

M.N.BHANDARI

body2015
ORDER : 1. By this criminal writ petition, a challenge is made to the FIR No. 58/2015 lodged with Police Station - Ramgarh Pachwara, Dausa for offence under sections 420, 467, 468, 471 and 120B IPC. 2. Learned counsel submits that the FIR has been lodged in respect of an election of panchayat, that too, regarding qualification of the petitioner. It is a dispute of pre-election disqualification. The nomination form was filled and examined by the Returning Officer. He did not find any objectionable material about the qualification of the petitioner. The petitioner accordingly contested the election and remained successful. The contesting candidate then challenged the election by an election petition. As per rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994, an election petition has to be presented within thirty days. The FIR in question was lodged after filing of the election petition. It is nothing but to circumvent the proceedings of the election petition in violation of Article 243-O of the Constitution of India. The Constitution bars challenge to the election save by an election petition. If the investigation in pursuance to the FIR is continued, it will offend Article 243-O of the Constitution. 3. The allegation against the petitioner is regarding submission of forged documents relating to educational qualification. The issue aforesaid is pending consideration in the election petition. The FIR is not permissible for an election dispute. Reference of the judgment of this court in the case of “Smt. Sameera Bano & etc versus State of Rajasthan & ors”, [AIR 2007 Rajasthan 168] has been given. In the aforesaid judgment, Larger Bench of this court held that pre-election disqualification can be adjudicated only in the election petition and no action can be taken by the State government under rule 23 of the Rajasthan Panchayati Raj Rules, 1996 (for short 'the Rules of 1996') read with section 39 of the Rajasthan Panchayati Raj Act, 1994 (for short “the Act of 1994”). If the FIR is not quashed, it can have ill consequence on an elected person in case of arrest or otherwise. It is by none-else but one of the candidates contested the election along with the petitioner and lost. Thus, impugned FIR deserves to be quashed. The arguments are supported by the judgment in the case of “State of Haryana & ors versus Ch. Bhajan Lal & ors.”, [1992 Suppl (1) SCC 335]. It is by none-else but one of the candidates contested the election along with the petitioner and lost. Thus, impugned FIR deserves to be quashed. The arguments are supported by the judgment in the case of “State of Haryana & ors versus Ch. Bhajan Lal & ors.”, [1992 Suppl (1) SCC 335]. Petitioner's case falls in criteria No.7 laid down in the judgment of Ch.Bhajan Lal (supra). Reference of the judgment of Hon'be Supreme Court in the case of “VM Shah versus State of Maharashtra & anr.”, [ (1995) 5 SCC 767 ] has also been given to show that pending civil litigation, criminal case cannot be allowed. Learned PP has opposed the petition. 4. I have considered rival submissions of the parties and perused the record. 5. The challenge is made to the FIR with a prayer to quash it. It is on many grounds. The first ground raised by learned counsel for petitioner is in reference to Article 243-O of the Constitution of India. The said Article is quoted hereunder for ready reference - “243-O. Bar to interfere by courts in electoral matters. - Notwithstanding anything in this Constitution, - (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K , shall not be called in question in any court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” 6. Perusal of Article 243-O reveals that no election to Panchayat would be called in question except by an election petition presented to such authority and in such a manner, as provided under the law made by the legislature of the State. In pursuance to the constitutional provision, the State of Rajasthan made Rajasthan Panchayati Raj (Election) Rules, 1994. Therein, authority as well as process for election petition to question the election has been given. 7. The first issue for my consideration is as to whether FIR would not be maintainable in reference to Article 243-O of the Constitution of India so as the Act of 1994 and the Rules made thereunder. Perusal of the FIR reveals allegation about submission of forged documents in the election. 7. The first issue for my consideration is as to whether FIR would not be maintainable in reference to Article 243-O of the Constitution of India so as the Act of 1994 and the Rules made thereunder. Perusal of the FIR reveals allegation about submission of forged documents in the election. The petitioner has taken it to be nothing but a challenge to her election without realising the allegations and its outcome. If the FIR is allowed to proceed as per provisions of the Code of Criminal Procedure, it can result in a charge sheet or negative final report but it cannot nullify the election automatically. 8. An election can be nullified only by an election petition, thus even if the FIR is allowed to proceed, it cannot nullify the election. In the aforesaid situation, FIR is not hit by Article 243-O of the Constitution. 9. Merely for the reason that a reference of the election has been given in the FIR, it does not mean challenge to the election. The allegations against the petitioner is for submission of forged documents in the election. If the forged documents were filed, obviously, an offence can be made out. It would then be punishable under the Indian Penal Code. 10. The consequence of the election petition would be to nullify the election or to maintain it while deciding election petition. The consequence of the FIR is not similar. It can result in final report or charge sheet resulting in further proceedings. The jurisdiction of two legislations operate in different fields. 11. If the argument of the petitioner is accepted, then as and when FIR is lodged on submission of forged documents, it cannot result in criminal proceedings. It would only be subject to the election petition. In that case, any one would be free to submit forged documents and contest election without fear. The effort of the court should be to minimise criminality and not to advance it. 12. The question now comes as to whether criminal proceedings are permissible while civil litigation is pending or decided or as to whether civil and criminal litigation can go simultaneously in regard to same allegations, provided that allegations for commission of offence exist therein. The issue has been decided by Hon'ble Supreme Court holding that civil and criminal cases can go simultaneously, if the allegation of criminality exist in the FIR. The issue has been decided by Hon'ble Supreme Court holding that civil and criminal cases can go simultaneously, if the allegation of criminality exist in the FIR. Reference of the judgments of Hon'ble Supreme Court in the case of “MS Sheriff versus The State of Madras & ors.” [ AIR 1954 SC 397 ] and in the case of “P Swaroopa Rani versus M Hari Harayan @ Hari Babu”, [ (2008) 5 SCC 765 ] are relevant. Paras 13 to 17 of the judgment in the case of P Swaroopa Rani (supra) are quoted hereunder for ready reference - “13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case. [See M.S. Sheriff v State of Madras AIR 1954 SC 397 , Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 and and Institute of Chartered Accountants of India v. Assn. of Chartered Certified Accountants, (2005) 12 SCC 226] 14. It is furthermore trite that Section 195(1) (b) (ii) of the Code of Criminal Procedure would not be attracted where a forged document has been filed. It was so held by a Constitution Bench of this Court in Iqbal Singh Marwah (supra) stating: 25. An enlarged interpretation to Section 195 (1) (b) (ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large. 26. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large. 26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in Clause (b)(ii) is either not placed for trial on account of non- filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner: “The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong.” In regard to the possible conflict of findings between civil and criminal court, however, it was opined: 32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.... It was concluded: 33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. It was concluded: 33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195 (1) (b) (ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis. 15. Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute. 16. The High Court, therefore, in our opinion, was not correct in staying the investigation in the said matter. Reliance has been placed by Mr. Gupta on Mahar Jahan and Ors. v. State of Delhi and Ors. (2004) 13 SCC 421 wherein this Court was dealing with a proceeding under Section 145 of the Code of Criminal Procedure. This Court noticed that a civil dispute was given the colour of a criminal case. As therein a proceeding under Section 145 of the Code of Criminal Procedure was pending, when a civil suit was also pending before a competent court of law, it was opined: 4. It is not disputed by the learned Counsel for the parties that this very property which is the subject-matter of these criminal proceedings is also the subject-matter of the civil suit pending in the civil court. The question as to possession over the property or entitlement to possession would be determined by the civil court. The criminal proceedings have remained pending for about a decade. We do not find any propriety behind allowing these proceedings to continue in view of the parties having already approached the civil court. Whichever way proceedings under Section 145 CrPC may terminate, the order of the criminal court would always be subject to decision by the civil court. Inasmuch as the parties are already before the civil court, we deem it proper to let the civil suit be decided and therein appropriate interim order be passed taking care of the grievances of the parties by making such arrangement as may remain in operation during the hearing of the civil suit. It was furthermore observed: “7. We have simply noted the contentions raised by the parties. It was furthermore observed: “7. We have simply noted the contentions raised by the parties. The civil court, in our opinion, would be the most appropriate forum to take care of such grievances and pass such interim order as would reasonably protect the interests of both the parties. The civil court may issue an ad interim injunction, may appoint a Commissioner or Receiver or may make any other interim arrangement as to possession or user of the property which is the subject-matter of proceedings in the civil court exercising the power conferred on it by Sections 94 and 151 of the Code of Civil Procedure.” It was, therefore, a case where this Court quashed a proceeding under Section 145 of the Code of Criminal Procedure as the matter pending before it arose out of a civil proceedings. Such observations were made keeping in view the fact that possession of the parties over the property in suit was in question. 17. The impugned order, therefore, cannot be sustained which is set aside accordingly. Civil Appeal arising out of SLP (C) No. 15670 of 2006 is allowed.” Perusal of the paras quoted above reveals no bar on simultaneous proceeding in the civil as well as criminal case. It is for the reason that to prove offence in the criminal case, evidence must come beyond doubt. 18. The judgment in the case of “VM Shah versus State of Maharashtra & anr.”, (1995) 5 SCC 767 , on which learned counsel for petitioner has placed reliance, was not followed by the Hon'ble Supreme Court in the case of “KG Premshankar versus Inspector of Police & ors.”, [ (2002) 8 SCC 87 ]. Paras 32 and 33 are quoted hereunder - “32. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff's case (supra)would be binding, wherein it has been specifically held that no hard and fast rule can be laid down and that possibility of conflicting decision in civil and criminal Courts is not a relevant consideration. The law envisages “such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for limited purpose such as sentence or damages.” 33. The law envisages “such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for limited purpose such as sentence or damages.” 33. Hence, the observation made by this Court in V.M. Shah's case (Supra) that the finding recorded by the criminal Court stands superseded by the finding recorded by the civil Court is not correct enunciation of law. Further, the general observations made in Karam Chand's case are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff's case as well as Sections 40 to 43 of the Evidence Act.” 19. The issue as to whether a criminal case can proceed during pendency of the civil case has already been answered by the Hon'ble Apex Court in the specific terms in the case of KG Premshankar (supra) and would be binding on this court. The mere pendency of civil litigation or initiation of it, would not debar criminal case. If the view is taken that in case of a civil litigation, criminal case cannot proceed, then it would mean that even if offence has been committed, complainant would not be permitted to pursue the case separately. The aforesaid is not the intention of the legislature and has been decided by Hon'ble Supreme Court in the case of KG Premshankar (supra). 20. In view of above, civil and criminal proceedings can go simultaneously subject to commission of offence. The view aforesaid is again reiterated by the Hon'ble Supreme Court in the case of “Smt Rumi Dhar versus State of West Bengal & anr”, [(2009)6SCC364]. In the aforesaid judgment, even settlement was arrived in the civil litigation but criminal case was allowed to proceed for the allegations made therein. In the background aforesaid, merely for the reason that election petition is pending in reference to the similar allegations, it does not mean that a criminal case cannot proceed during its pendency. The allegations have been made for creation of document fraudulently to contest the election. The FIR can proceed to find out whether offence has been committed or not. 21. The allegations have been made for creation of document fraudulently to contest the election. The FIR can proceed to find out whether offence has been committed or not. 21. In this petition, a case is not made out to fall it in any of the grounds laid down by the Hon'ble Supreme Court in the case of “State of Haryana & ors versus Ch. Bhajan Lal & ors”, [1992 Suppl (1) SCC 335]. In para 105 of the judgment, grounds have been given where FIR can be quashed to prevent abuse of the process of the court or to secure justice. Para 105 of the judgment is reproduced hereunder - “105. 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 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. 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. 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. 4. 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. 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. 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. 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 specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 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. 22. Learned counsel for petitioner has referred para seven above. The case was examined in reference to the aforesaid para but I do not find that it is covered by the ground referred above. The FIR has not been lodged with mala fide etc. It may be that election petition was filed by the complainant followed by the present FIR but looking to the allegations, it cannot be said to be for settling the score by converting civil litigation into criminal and suffers from mala fide. 23. So far as the judgment in the case of Smt Sameera Bano (supra) is concerned, the issue involved therein was altogether different. The controversy involved therein was determined by the Larger Bench by referring Article 243-F and 243-O of the Constitution of India, apart from sections 19, 39 and 43 of the Act of 1994. It was further in reference to 80 of the Rules of 1996. The controversy therein was in regard to initiation of action at the instance of the government for pre-election disqualification. It was further in reference to 80 of the Rules of 1996. The controversy therein was in regard to initiation of action at the instance of the government for pre-election disqualification. As per the constitutional mandate and the provisions legislated by the State Government, pre-election dispute cannot be taken up by the Government but can be challenged by way of election petition only. The judgment aforesaid has no application to the present case as the FIR in question is not to declare the election to be illegal but is for the offence. 24. The fear of arrest has been shown by learned counsel for the petitioner with consequence. The fear of consequence is unwarranted as section 38 of the Act of 1994 does not disqualify a person merely on the ground of arrest. It cannot be taken even as a ground for suspension by invoking section 38 (4) of the Act of 1994. It can be when charges are framed as held by this court in the case of “Banshidhar Saini versus State of Rajasthan”, [1988(1) WLN270]. 25. In view of above, even if arrest is made, it would not have any consequence on the election of the petitioner. It may be that working of the petitioner as Sarpanch may be affected but it is if some offence has been committed. 26. In view of the discussion made above, I do not find that by virtue of registration of the FIR, Article 243-O of the Constitution of India would be offended. The FIR is not with a prayer and cannot be to declare election to be illegal so as to nullify it. 27. A minute examination of the allegations made in the FIR reveals use of forged documents during the course of election. The FIR would be investigated in reference to the allegations. If charge sheet is filed followed by trial, it may result in punishment. 28. In the background aforesaid, I do not find that any ground is made out to quash the FIR. Accordingly, finding no merit in the petition, it is dismissed.