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2017 DIGILAW 743 (ALL)

Dinesh Chandra Sinha v. State of U. P.

2017-03-09

AMAR SINGH CHAUHAN

body2017
JUDGMENT : Amar singh chauhan, J. The applicant Dinesh Chandra Sinha through the present application moved under section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the impugned order dated 07.10.2009, passed by Incharge Sessions Judge, Jaunpur as well as order dated 28.8.2009, passed by Judicial Magistrate 1st Jaunpur in Case Crime No. C-14 of 2005, under sections 419, 420, 465, 467, 468, 471 IPC, Police Station Machhalishahar, District Jaunpur and further prayed to stay the aforesaid proceeding. 2. The facts which are requisite to be stated for adjudication of this application are that the opposite party no. 2 on 01.4.2005 filed an application under section 156(3) Cr.P.C. alleging herself to be widow of one Sri Ram Bind. On 30.12.1994, Sri Ram Bind executed a Will and the Will deed was registered in the name of the daughters of opposite party no. 2 namely Smt. Dupatti Devi and Usha Devi and on the basis of said registered Will the name of opposite party no. 2 was got mutated in revenue record. It is also alleged that after the death of husband of opposite party no. 2 on 27.6.1999, her nephew Vijay Lal son of Pati Ram made conspiracy and prepared a forged notary Will by forging thumb impression of her husband. Thus indulgence of the Court was sought for direction to the police for investigating the said offence which is said to have been committed by Vijay Lal and his associates namely Ashok Kumar and Rama Shankar Yadav. Submission of learned counsel is that applicant is not named in the application moved under section 156(3) Cr.P.C. which was allowed and case was registered as Crime No. C-14 of 2005, under sections 419, 420, 465, 467, 468, 471 IPC at Police Station Machhalishahar, District Jaunpur on 10.8.2005. After concluding the investigation the Investigating Officer submitted final report against which protest petition was filed thereupon the further investigation was ordered. Ultimately, police submitted charge-sheet against three persons namely Vijay Lal, Rama Shankar and Ashok Kumar in the year 2007. Applicant was not charge-sheeted as such applicant was not affected by the aforesaid case in any manner whatsoever. However, to the utter surprise to the applicant, investigating agency, without collecting any further evidence or any evidence whatsoever either documentary or oral, submitted a supplementary charge-sheet naming applicant as accused in the above noted case. Applicant was not charge-sheeted as such applicant was not affected by the aforesaid case in any manner whatsoever. However, to the utter surprise to the applicant, investigating agency, without collecting any further evidence or any evidence whatsoever either documentary or oral, submitted a supplementary charge-sheet naming applicant as accused in the above noted case. At this stage, it is relevant to point out that the applicant is a practicing Advocate and was enrolled as an Advocate by Bar Council in the year 1968. He is practicing at Machhalishahar in the revenue side where there has been Court of Sub-Divisional Magistrate and the Tehsildar. In the year 1989, applicant was appointed as Notary under the Notaries Act, 1952 and since then he has been regularly performing his duties as Notary. His name as Notary was thus duly entered into register maintained under the Notaries Act, 1952 entitling him to practise as Notary and perform his duties as such. The basic allegation against the applicant in the present case relates to his functioning as Notary whereby he had verified and certified execution of said instrument purporting to be Will of Sri Ram Bind. It appears that the aforesaid Will of Sri Ram Bind was presented before him as Notary and on the said document/instrument, one Kunwar Bharat Singh, Advocate of Machhalishahar had identified him. It is also categorically submitted that at the time when the aforesaid document was presented before the applicant for authentication, no photograph was affixed. Thus, applicant has acted only upon identification of thumb impression which was done by an Advocate of Machhalishahar, who was also known to the applicant. In fact, neither there is any allegation nor there is any evidence that the applicant being a Notary had any knowledge whatsoever to the effect that the said document is not a genuine document. The applicant was performing his duties with utmost sincerity and under the bona fide discharge of his duties only verified by authenticating said document. Such functioning was discharged by the applicant in exercise of his duties as contemplated under Section 8(1)(a) of the Notaries Act, 1952. Thus, act of the applicant was duly covered by virtue his office of Notary that he was having been duly appointed by the Government of Uttar Pradesh. 3. Such functioning was discharged by the applicant in exercise of his duties as contemplated under Section 8(1)(a) of the Notaries Act, 1952. Thus, act of the applicant was duly covered by virtue his office of Notary that he was having been duly appointed by the Government of Uttar Pradesh. 3. Learned counsel for the applicant submitted that by way of the present application, the applicant has challenged the order dated 28.8.2009, passed by the Judicial Magistrate 1st Jaunpur in Case No. 207A of 2008, arising out of Crime No. C-14 of 2005 (State v. Dinesh Chandra) rejecting application of applicant seeking discharge in criminal case hereinafter detailed as well as order dated 07.10.2009, passed by Incharge Sessions Judge, Jaunpur. It is further submitted that learned Magistrate rejected the discharge application moved by the applicant against which revision was summarily dismissed. In fact, above noted order of the court below are wholly illegal and without jurisdiction inasmuch as applicant's prosecution in the aforesaid crime, was only misconceived and has been initiated in flagrant violation of law. The Magistrate was not competent to take cognizance of offence when act of the applicant was duly performed and done in exercise of his function under Notary Act, 1952. It is also submitted that no complaint has been made by any officer either by Central Government or by the State Government or by general or special order. In absence of any complaint, the prosecution in the above noted case, are ab initio void and illegal. The applicant has neither forged any document nor has committed any cheat as defined under Section 415 IPC nor has committed any offence as defined under Sections 419 and 420 IPC. The applicant was neither author of the said document nor was supposed to be in any manner beneficiary from the creation of the said Will. The prosecution of the applicant for the offence in question is thus nothing but is abuse of the process of the court. 4. Learned counsel for the applicant further contends that the applicant is also shown to already invoked the revisional jurisdiction under section 397 Cr.P.C. It is also submitted that revision filed against the order passed by the Magistrate was dismissed in limine without going into the merit of the case. 4. Learned counsel for the applicant further contends that the applicant is also shown to already invoked the revisional jurisdiction under section 397 Cr.P.C. It is also submitted that revision filed against the order passed by the Magistrate was dismissed in limine without going into the merit of the case. Learned counsel for the applicant placed reliance upon a judgement of this Court in case of H.K. Rawal v. Nidhi Prakash, 1989 Law Suit (All) 107 wherein it has been observed that where an application under section 397 Cr.P.C. filed by any party in the Court of Sessions is decided against him, it is open to that party to invoke the extraordinary jurisdiction of the High Court under section 482 Cr.P.C. only if the order of the Sessions Judge has resulted in the abuse of the process of the Court and/or calls for interference to secure the ends of justice as the bar under Sections 397(3) and 399(3) Cr.P.C. is not applicable to the exercise of the inherent powers by the High court under section 482 Cr.P.C. in such a case. Learned counsel also placed reliance upon a judgement of the Apex Court in case of Hira Lal Jain v. Delhi Administration, Laws (SC)-1972-0- 2598 wherein it was observed that the "many income of may lawyers in the District Courts is derived from the work of identifying persons and sureties in the Courts. The other accused must have told the appellant that they were the real claimants. He believed them and agreed to act for them. It seems to us that he did nothing beyond what a lawyer is authorised to do in a Court of Law. There is no evidence to suggest that he had previous knowledge of the fact that the accused were not the rightful claimants. Again, there is no evidence whatsoever that there was any concert between him and the other accused antecedent to the filing of the applications and vakalatnamas in court by him. In the absence of such evidence, it cannot be said that there is prima facie evidence for the offence of conspiracy against him". 5. Per contra learned AGA as well as learned counsel for the informant contend that during the course of investigation, thumb impression of Sri Ram Bind was sent to be laboratory for verification of the original Will which was found fake. 5. Per contra learned AGA as well as learned counsel for the informant contend that during the course of investigation, thumb impression of Sri Ram Bind was sent to be laboratory for verification of the original Will which was found fake. Applicant admitted that he identified the thumb impression of Sri Ram Bind which is produced before him by Kunwar Bharat Singh, Advocate. The impugned order is reasoned one and genuine. Applicant is the Notary and has participated in manufacturing of forged Will. For gaining pecuniary benefit, applicant raised a person who was not present before him. Since the Will dated 29.9.1999 the forged document was hatched by conspiracy of the applicant along with other co-accused and the court below by appreciating the factual as well as legal possibility has been pleased to reject the discharge application. 6. Heard Sri V.P. Srivastava assisted Sri Dinesh Tiwari, learned counsel appearing on behalf of applicant, learned AGA for the State, Sri Piyush Dubey holding brief of Sri A.K. Pandey, learned counsel appearing for the informant and perused the record. 7. Before adverting the claim of the parties, it is relevant to quote sections 227 and 228 of the Code of Criminal Procedure, which are reproduced as under: Discharge. "227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." Framing of charge. 228. "227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." Framing of charge. 228. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried." 8. Relative scope of sections 227 and 228 of the Code was noticed and considered by the Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460 . The Hon'ble Supreme Court held as under: "17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the code, unless the accused is discharged under section 227 of the Code. Under both these provisions, the Court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Under both these provisions, the Court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgement of the court while section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code." "19. At the initial stage of framing of a charge, the court is concerned not with proof, but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage." 9. The section 13 of the Notaries Act, 1952 contemplated as under: 13. Cognizance of offence - (1) "no court shall take cognizance of any offence committed by a notary in the exercise of purported exercise of his functions under this Act save upon complaint in writing made by an officer authorised by the Central Government or a State Government by general or special order in this behalf. (2) No Magistrate other than a presidency magistrate of the first class shall try an offence punishable under this Act." 10. (2) No Magistrate other than a presidency magistrate of the first class shall try an offence punishable under this Act." 10. In the instant case, the Magistrate, by passing the impugned order, tried to appreciate the evidence instead of considering the prima facie case at the stage of framing the charges. The Court has undoubted power to sift and weigh evidence but that sifting and weighing of evidence would not entitle the court to appreciate the evidence. At this stage, the court cannot examine the pros and cons of the prosecution and recorded a finding about the probabilities of the prosecution case without the prosecution being given an opportunity of examining its witnesses. The accused can be discharged only when there is no sufficient ground for proceeding against him. The words "not sufficient ground for proceeding against the accused" appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. The court has to see that whether material brought on record would reasonably connect the accused with the crime no more is required to be inquired into only prima facie case is to be seen. The question whether charges have been proved or not, can be determined only after the evidence is recorded in the case. Only sufficiency of material has to be looked into and no other independent corroboration or any other extraneous material should be gone into by the Trial Court. The probative value of the material on record cannot be gone into. An order of discharge, would be warranted only in those cases where the court is satisfied that there are no chance of conviction of an accused and the trial would be an exercise in futility. 11. In the case in hand, the applicant has acted upon the identification of the thumb impression of Sri Rambind done by Kumar Bharat Singh, Advocate. Applicant has exercised the function under the Notary Act. In case, there is any dereliction of duty in the exercise of function, only Central Government or State Government by a general or special order is authorised to anyone to move the complaint. Hence the cognizance against the applicant is appears to be barred by the Section 13 of the Notary Act. 12. In case, there is any dereliction of duty in the exercise of function, only Central Government or State Government by a general or special order is authorised to anyone to move the complaint. Hence the cognizance against the applicant is appears to be barred by the Section 13 of the Notary Act. 12. In view of the above discussion, I find that order is unjustified, illegal and devoid of merit and as such the application is allowed and the impugned orders dated 7.10.2009 and 28.8.2009 are hereby quashed with a direction to the Magistrate concerned to decide afresh the matter after applying judicial mind in accordance with law. No order as to costs.