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2024 DIGILAW 211 (UTT)

Nayeem Rahat v. State of Uttarakhand

2024-03-21

RAVINDRA MAITHANI

body2024
JUDGMENT : Ravindra Maithani, J. The challenge in this revision is made to the orders dated 17.02.2020 and 19.02.2020, passed in Sessions Trial No. 196 of 2007, State Vs. Kutubuddin and others, by the court of Additional Sessions Judge 4th, Dehradun (“the sessions trial”). By the impugned order dated 17.02.2020, the court observed that the offences that were committed by the revisionists and the co-accused were not done at one particular point of time, instead they were criminal acts, which were done in a chain. Therefore, no accused may be specifically charged for any specific offence, instead all the accused, including the revisionists should be charged with the same offences. This order was passed under Sections 216 of the Code of Criminal Procedure, 1973 (“the Code”). It is, thereafter, on 19.02.2020, the court framed charges under Sections 120B, 302 r/w Section 120B IPC, Section 302 r/w 201 r/w Section 120B IPC, Section 404 r/w 120B IPC, Section 467 r/w Section 120B IPC, Section 468 r/w Section 120 IPC and Section 471 r/w 120B IPC against the revisionists and all other co-accused. 2. Heard learned counsel for the parties and perused the record. 3. In order to appreciate the controversy, the facts, briefly stated, are as follows:- (1) On 08.01.2006, the police received an information that a dead body, in a burnt state, was lying at a place; inquest was prepared; the dead body could not be identified. On 09.01.2006, the post mortem of the dead body was done. Subsequently, the police could not identify the dead body, therefore, the chapter was closed. (2) On 14.02.2006, PW1 Smt. Manjeet Chawla lodged a missing report of her maternal uncle Sardar Pushpendra Singh Duggal. During the course of investigation in this missing report, on 05.08.2007, co-accused were arrested and from their possession, a Will of Pushpendra Singh and various other documents were recovered. After evidence, charge sheet was submitted and the prosecution revealed the story as follows:- (i) The revisionists alongwith co-accused hatched a conspiracy to grab the property of deceased Pushpendra Singh. (ii) The Will of deceased Pushpendra Singh was forged in the name of co-accused Kutubuddin. As per prosecution documents, the revisionist Nayeem Rahat is its witness. During the course of hearing, it is stated at Bar today that the revisionist Tejpal Singh is also a witness in that Will. (ii) The Will of deceased Pushpendra Singh was forged in the name of co-accused Kutubuddin. As per prosecution documents, the revisionist Nayeem Rahat is its witness. During the course of hearing, it is stated at Bar today that the revisionist Tejpal Singh is also a witness in that Will. (iii) Some time from December, 2005, the deceased Pushpendra Singh went on missing. (iv) On 08.01.2006, the dead body in charred condition was found, but it could not be identified. (v) On 25.04.2007, a dead body was found at a railway track within Jalandhar Cantt. Police Station. (vi) The revisionist Nayeem Rahat visited Jalandhar and identified the dead body as that of deceased Pushpendra Singh. He procured inquest report and death certificate of the deceased Pushpendra Singh. 4. Initially, both the revisionists were charged on 31.01.2008 for the offences punishable under Sections 467, 468, 471 IPC. In addition to it, the revisionist Nayeem Rahat was also charged for the offences punishable under Section 201 IPC. After 27 witnesses were examined, on 17.02.2020, the court by the impugned order has observed that all the accused including the revisionists should be charged with the similar offences because the criminal act has not been done at one point of time, instead it is a chain of offences. Pursuant to order dated 17.02.2020, amended charges were framed on 19.02.2020. Both these orders are impugned. 5. Learned counsel appearing for the revisionists would submit that both the impugned orders are bad in the eye of law. He would submit that the addition or alteration of charge under Section 216 of the Code is not a mere formality. There should be nexus between the evidence and the charges so amended. It is argued that the impugned orders do not reveal as to what was the evidence that was available before the court while observing that charges should be amended. Learned counsel would submit that, in fact, there is no evidence which may suggest that the charged ought to have been amended. 6. Learned counsel for the revisionists would also argue that even if charges are altered as per law, the court has to examine, the prejudice that may be caused to the accused. It is argued that the “test of prejudice” is required to be done, which is not done in the instant case. 7. 6. Learned counsel for the revisionists would also argue that even if charges are altered as per law, the court has to examine, the prejudice that may be caused to the accused. It is argued that the “test of prejudice” is required to be done, which is not done in the instant case. 7. In support of his arguments, learned counsel has placed reliance on the principles of law, as laid down in the cases of Anant Prakash Sinha Vs. State of Haryana and others, (2016) 6 SCC 105 and Dr. Nallapareddy Sridhar Reddy Vs. State of Andhra Pradesh and others, (2020) 12 SCC 467 . 8. In the case of Anant Prakash Sinha (supra), the Hon’ble Supreme Court interpreted the aspect of addition of charge and in paragraphs 18 and 19 observed as follows:- “18. From the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC. 19. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 CrPC. 19. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 CrPC. It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. It has been held in Amar Singh v. State of Haryana [Amar Singh v. State of Haryana, (1974) 3 SCC 81 : 1973 SCC (Cri) 789] that the accused must always be made aware of the case against him so as to enable him to understand the defence that he can lead. An accused can be convicted for an offence which is minor than the one he has been charged with, unless the accused satisfies the court that there has been a failure of justice by the non-framing of a charge under a particular penal provision, and some prejudice has been caused to the accused. While so stating, we may reproduce the following two passages from Bhimanna v. State of Karnataka [Bhimanna v. State of Karnataka, (2012) 9 SCC 650 : (2012) 3 SCC (Cri) 1210] : (SCC pp. 659-60, paras 25-26) ........................................................................................... ......................................................................................... ...................................................................................” 9. In the case of Dr. Nallapareddy (supra) also, the Hon’ble Supreme Court discussed the law on the point and in para 20 observed as follows:- “20. In Jasvinder Saini v. State (NCT of Delhi) [Jasvinder Saini v. State (NCT of Delhi), (2013) 7 SCC 256 : (2013) 3 SCC (Cri) 295], this Court dealt with the question whether the trial court was justified in adding a charge under Section 302 IPC against the accused persons who were charged under Section 304-B IPC. T.S. Thakur, J. (as he then was) speaking for the Court, held thus : (SCC pp. 260-61, para 11) “11. A plain reading of the above would show that the court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the court decides to alter or add any charge. 260-61, para 11) “11. A plain reading of the above would show that the court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court.” 10. On the other hand, learned counsel for the informant would submit that there is material to suggest that the charges ought to have been amended; the impugned orders are as per law. Learned counsel would submit that the “test of prejudice” has also been done by the court. After charges were amended, the prosecution has given a statement that they would not adduce any other evidence and on behalf of the accused also, it was told to the court that no witness is to be cross-examined on the amended charges. It is argued that this completes the “test of prejudice”. 11. Learned State counsel would submit that the charges have been framed in accordance with law; the provisions of Sections 216 and 217 of the Code have been duly complied with. 12. Charge has its own significance at the beginning of trial. In fact, it is the stage when the trial commences. One of the basic principles of framing charge is that an accused must know in advance as to what is the evidence and what are the offences, he has to face during trial. 12. Charge has its own significance at the beginning of trial. In fact, it is the stage when the trial commences. One of the basic principles of framing charge is that an accused must know in advance as to what is the evidence and what are the offences, he has to face during trial. In fact, to put it categorically to the accused about his case and offence which he has committed, is one of the essences of the charge. 13. Chapter XVII of the Code deals with the charge. It also gives the forms, etc. In fact, what would be error in the charge is another topic which is dealt with by Section 215 of the Code as well as Section 464 of the Code. There are different tests for that, which is not the subject matter in the present controversy. 14. Section 216 of the Code permits the court to alter charge. Section 217 is a step in that direction when the witnesses are recalled. These two sections are as follows:- “216. Court may alter charge.—(1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. 217. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. 217. Recall of witnesses when charge altered.— Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed— (a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice; (b) also to call any further witness whom the Court may think to be material.” 15. Even bare reading of Section 216 of the Code, makes it abundantly clear that there should be reasons to addition or alter the charge. It is an exercise which can be done at any time before the judgment is pronounced. 16. Sub Section (3) of Section 216 of the Code, in fact, obligates the court to examine the “test of prejudice” to an accused and if the court finds that no prejudice is to be caused by the alteration of the charge, the trial should proceed as if nothing has happened. But in other cases, the court has to take the course as per law, may be under Section 217 of the Code, for recalling the witnesses, if any witness is sought to be further cross-examined by the accused after alteration of the charge. 17. In the impugned order dated 17.02.2020, the court has rightly observed that the alleged act was not done by the revisionists and the co-accused at any one point of time, instead the criminal acts were done in a chain of different acts at different places. 18. In nutshell, the prosecution has put the chronology as follows:- (i) A conspiracy to grab the property of the deceased Pushpendra Singh was hatched by the revisionists and the co-accused. 18. In nutshell, the prosecution has put the chronology as follows:- (i) A conspiracy to grab the property of the deceased Pushpendra Singh was hatched by the revisionists and the co-accused. (ii) Forging of a Will dated 07.09.2004 of the deceased Pushpendra Singh in favour of Kutubuddin, in which, it is stated that both the revisionists were the witnesses. (iii) Missing of the deceased Pushpendra Singh some time from December, 2005 (PW13 Aditya Madan has stated about it). (iv) Killing of the deceased Pushpendra Singh some time before 08.01.2006. (v) Recovery of the dead body of the deceased Pushpendra Singh on 08.01.2006 (It is the prosecution case that the DNA sample of the dead body and DNA sample of PW12 Rachna, the daughter of the deceased Pushpendra Singh was taken. About it, PW 18 Virendra Kaur, the wife of the deceased has also stated. Today, learned State counsel has given a statement that the DNA samples were sent for forensic examination.) (vi) According to prosecution, in furtherance of the execution of the criminal conspiracy, the revisionist Nayeem Rahat visited Jalandhar and identified unclaimed dead body claiming that the dead body is of the deceased Pushpendra Singh. In Jalandhar, the inquest was done and as per prosecution, the revisionist Nayeem Rahat procured death certificate of the deceased Pushpendra Singh. The photographs of the deceased at Jalandhar were shown to the witnesses. They have denied that the dead body is of the deceased Pushpendra Singh. In fact, PW12 Rachna, the daughter of the deceased and PW18 Virendra Kaur, the wife of the deceased have stated so. 19. It is not a case of direct evidence. As per prosecution, the criminal conspiracy was executed in great secrecy. The prosecution rests its case on some direct evidence and based on circumstantial evidence also. 20. In the cases of circumstantial evidence, the five principles have categorically been laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sharda Vs. State of Maharashtra (1984) 4 SCC 116 . In paras 153 to 156 of it, the Hon’ble Supreme Court observed as follows:- “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. In paras 153 to 156 of it, the Hon’ble Supreme Court observed as follows:- “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783 where the observations were made: SCC para 19, p. 807: SCC (Cri) p. 1047 “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 155. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry [1952 NZLR 111] thus: “Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.” 156. Lord Goddard slightly modified the expression “morally certain” by “such circumstances as render the commission of the crime certain”. 21. The circumstances available in the instant case have already been delineated by this Court in the foregoing paragraphs. Twenty seven witnesses that were examined by the prosecution are on different aspects. They are as follows:- (i) PW1 Manjeet Chand has lodged a missing report of the deceased Pushpendra Singh. (ii) PW2 Pradeep Kumar is the person, to whom the car of the deceased was sold by co-accused Kutubuddin and Mahmood Ali. This car was recovered from the house of the brother of the PW2 Pradeep Kumar. PW3 Sadab Ali has stated about it. (iii) PW4 Smt. Grace was a neighbour of the deceased. She has given evidence that she did not see the deceased for some time. (iv) PW5 Atul Bhatnagar, at one point of time wanted to purchase the property of the deceased. (v) PW6 Vipin Kumar is the witness of inquest of the dead body that was found in the forest area on 08.01.2006. (vi) PW7 Madhukar Walia has not supported the prosecution case. (vii) PW8 Dr. Ajeet Gairola had conducted the post-mortem of the dead body on 09.01.2006, which was found in the burnt state. (viii) PW9 Vikas Diwas has stated about the extra judicial confession made by the co-accused Kutubuddin and Mahmood Ali. (ix) PW12 Rachna is the daughter of the deceased. She has stated that her blood samples for DNA purpose were taken. Ajeet Gairola had conducted the post-mortem of the dead body on 09.01.2006, which was found in the burnt state. (viii) PW9 Vikas Diwas has stated about the extra judicial confession made by the co-accused Kutubuddin and Mahmood Ali. (ix) PW12 Rachna is the daughter of the deceased. She has stated that her blood samples for DNA purpose were taken. She had denied the photograph of her father, which was shown to her as paper no. 23A. (x) PW18 Virendra Kaur is the wife of the deceased. She has also stated about it. (xi) PW10 Avdesh Tyagi, PW24 Khemraj and PW25 Ravindra are the witnesses from Jalandhar. They all have stated that it is the revisionist Nayeem Rahat, who visited Jalandhar and identified one unclaimed body that of Pushpendra Singh and based on it, he got prepared other documents pertaining to the death of the deceased Pushpendra Singh. (xii) PW13 Aditya Madan has been a lawyer conducting the cases of deceased. He has denied the signature of the deceased Pushpendra Singh on the Will dated 05.09.2004. (xiii) On 05.08.2007, the co-accused were apprehended with the documents pertaining to the deceased Pushpendra Singh. PW14 Rajendra Singh Hyanki, PW 16 Sandeep Negi, PW17 Vinod Kumar Singh and PW19 Shyam Kumar have stated about this recovery. In fact, from the possession of the co-accused, it is the prosecution case that various tickets of Jalandhar were also recovered. (xiv) PW15 Madan Pal Saini conducted the inquiry on the missing report of the deceased. (xv) PW20 Pankaj Bhagi has not supported the prosecution case. (xvi) PW21 Bhagwant Singh Bisht and PW22 Trivendra Singh Rana have partly conducted the investigation. (xvii) PW23 Jahid Khan is the person, who had applied for the letter of administration of the Will dated 06.09.2004 allegedly forged by the revisionists and the co-accused in the name of Kutubuddin. He has stated about it. (xviii) PW26 Narendra Kumar is the Police Constable. He has stated about certain police papers. (xix) PW27 Naveen Chandra Pant is the handwriting expert. 22. On 31.01.2008, the following charges were framed on the accused:- SL No. Name of the accused Charges Charges 1. Nayeem Rahat Sections 201, 467, 468 r/w34, 471 IPC 2. Tejpal Singh Section 467 468 r/w 34, 471 IPC 23. He has stated about certain police papers. (xix) PW27 Naveen Chandra Pant is the handwriting expert. 22. On 31.01.2008, the following charges were framed on the accused:- SL No. Name of the accused Charges Charges 1. Nayeem Rahat Sections 201, 467, 468 r/w34, 471 IPC 2. Tejpal Singh Section 467 468 r/w 34, 471 IPC 23. After impugned order on 19.02.2020, charges were framed on the revisionists and the co-accused under Sections 120B, 302 r/w 201B, 302 r/w 201 r/w 120B IPC 404 r/w 120B 467 r/w 120 B, 468 r/w 120B and 471 r/w 120B IPC. 24. There is not much dispute with regard to the charges framed under Section 467, 468 and 471 IPC because those charges had already been framed on the revisionists on 31.01.2008. In fact, if we read the charge framed on 31.01.2008 on the revisionist Nayeem Rahat, it makes it an interesting lead because it speaks that after disposing of the dead body of the deceased Pushpendra Singh at Dehradun in April, 2007, the revisionist visited Jalandhar and gave an advertisement in the local newspaper about missing of the deceased Pushpendra Singh and identified an accidental dead body at Civil Hospital Jalandhar as Pushpendra Singh Walia and obtained inquest, post mortem and death certificate etc. in the name of Pushpendra Singh Walia with an intent to escape himself from legal punishment. In fact, this categorically also speaks of a charge of killing of deceased. Impliedly it speaks of killing. As stated, this case is based on the circumstantial evidence also. 25. At this stage, this Court may not be asked to categorically record finding as to what is the material, as such, available against each of the accused. But, having examined the evidence and considering the arguments of both the sides, this Court is of the view that there are circumstances also to suggest that there are grounds to presume that the revisionists have committed the offences under Sections 120B, 302 r/w 120B IPC, 302 r/w 201 r/w 120B IPC, 467 r/w 120B IPC, 468 r/w 120B IPC and Section 471 r/w 120B IPC. Therefore, the court below did not commit any error in framing such charges. 26. Therefore, the court below did not commit any error in framing such charges. 26. Insofar as, charge under Section 404 r/w 120B IPC is concerned, the Court wanted to know from the learned State counsel as well as learned counsel for the informant as to what is the basis of framing of this charge? According to this altered charge, the revisionists, in furtherance of their criminal intention, misappropriated various iron sheets, scraps, cars and other articles of the deceased Pushpendra Singh Walia. 27. Learned counsel for the informant as well as learned State counsel would submit that by forging Will of the deceased, such an attempt was made by the revisionists and co-accused. The charge under Section 404 IPC is with regard to the criminal breach of trust. What was the property entrusted to the revisionists and co-accused to which they misappropriated, there is no iota of evidence for that. 28. Insofar as, forging the Will is concerned, it is not misappropriation of any property. Instead, as per allegations, it is an attempt to grab the property of the deceased Pushpendra Singh. This Court is of the view that there is no reason to frame a charge under Section 404 r/w 120B IPC against the revisionists. To that extent, the charge needs modification. 29. Insofar as, the “test of prejudice” is concerned, undoubtedly, once charges are added or altered, the court has to examine, as to whether any prejudice is caused to the accused, and if not, the court may proceed as if nothing has happened. But, if the court considers that the prejudice might have been caused to the accused, perhaps the court may, after giving opportunity to the parties, recall the witnesses. This “test of prejudice” has been substantially complied with in the instant case, because after alteration of charges, on behalf of the prosecution on 19.02.2020, a statement was given that the prosecution does not intend to adduce any other evidence in the trial. The chapter did not close here. Thereafter, on behalf of the revisionists and other co-accused, a statement was given that on added and altered charge, they do not intend to adduce any evidence from the prosecution evidence. The chapter did not close here. Thereafter, on behalf of the revisionists and other co-accused, a statement was given that on added and altered charge, they do not intend to adduce any evidence from the prosecution evidence. Though this line, in last but one paragraph of impugned order dated 19.02.2020, is not happily worded, but it carries only one intention that at that time, a statement was given on behalf of the revisionists and the co-accused that they do not want to cross-examine any witness already examined on this aspect. 30. Accordingly, this Court is of the view that no prejudice, as such, has been caused to the revisionists. There has been material to frame charge, as framed by the impugned orders, except charge under Section 404 r/w 120B IPC. Consequently, the orders impugned are liable to be modified in so far as the framing of charge under Section 404 r/w 120B IPC is concerned and the said charge is liable to be deleted. 31. In view thereof, the criminal revision is partly allowed. The charge under Section 404 r/w 120B IPC framed against the revisionists is deleted. 32. The trial shall proceed against the revisionists under Section 120B, Section 302 read with 120-B IPC, Section 302 r/w 201 r/w 120B IPC, Section 467 r/w 120B IPC, Section 468 r/w 120B IPC and Section 471 r/w 120B IPC only. The impugned orders passed in the case are modified to the extent as above.