Prashant Kumar Agarwal, J.:— Heard learned counsel for the parties.
2. The accused-petitioner, a practicing lawyer, has filed this criminal misc petition under Section 482 Cr. P.C against the order dated 2.4.2008 passed by the Additional Judge No. 7, Jaipur City, Jaipur in Criminal Revision Petition No. 1/2008 whereby the learned Revisional Court while dismissing the revision petition filed by the petitioner upheld and affirmed the order dated 25.2.2008 passed by the Judicial Magistrate No. 11, Jaipur City, Jaipur whereby the learned trial Court ordered to frame charge for the offences under Sections 466, 467, 471, 474, 120, 204 & 120-B IPC against the petitioner and three other accused.
3. Brief relevant facts for the disposal of this petition are that a charge-sheet came to be filed against the petitioner and co-accused for the aforesaid offences on the premise that in pursuance of the criminal conspiracy entered between them a forged and fake order dated 30.5.2007 was prepared in Criminal Revision Petition No. 376/2007 pending before the Court No. 7 of the High Court at Jaipur and the same was placed in the Court file after removing the original order dated 30.5.2007 and after obtaining certified copy of the aforesaid forged and fake order used it for the release of the accused in a sessions case pending in the Court of Additional Sessions Judge (Fast Track) No. 2, Jaipur City, Jaipur in respect of FIR No. 439/2006 registered at Police Station, Bajaj Nagar for the offences under Sections 302 & 201 IPC.
4. As per the charge-sheet on the basis of evidence collected during investigation following specific role/act was found of the petitioner:
(i) Shri Tulsiram, father of Shri Ajay Sharma, one of the accused in the said sessions case, met petitioner at his residence in connection with release of his son and other accused in the aforesaid case.
(ii) As a result of this meeting, petitioner made contact with Shri Rajesh Kala, Advocate, one of the co-accused, and both of them entered into criminal conspiracy for the release of the aforesaid accused on bail.
(iii) On 30.5.2007, the matter was adjourned and this fact was in the knowledge of the petitioner.
(iv) One Shri Suresh Gurjar, Munshi of Shri Rajesh Kala Advocate, brought the concerned file from the Court and handed it over to co-accused Shri Kala in the presence and knowledge of the petitioner and Shri Kala handed over the file to Shri Ummed Singh, another co-accused, in the presence of the petitioner so that forged and fabricated order dated 30.5.2007 may be prepared.
(v) Certified copy of the aforesaid forged order dated 30.5.2007 was obtained and handed over to Shri Kala in the presence and knowledge of the petitioner and Shri Kala in turn handed it over to petitioner.
(vi) After obtaining certified copy of the aforesaid order from Shri Kala, petitioner had contact with Shri Tulsi Ram through his mobile No. 9414059369 on his mobile No. 9414236741.
(vii) Petitioner made arrangement to send copy of the aforesaid order through fax to Shri Tulsi Ram at Bharatpur.
(viii) Petitioner requisitioned the file of the aforesaid case maintained by the Office of the Government Advocate at High Court by issuing a slip for that purpose in his own hand.
(ix) Petitioner rubbed out word “adjournment” written by Deputy Government Advocate-Shri V.K Sharma on the cover of the above file and wrote word “dismissed” in his own hand on the cover of the above file.
(x) Petitioner was not deputed to appear on behalf of the State Government in the aforesaid case in Court No. 7 on 30.5.2007
(xi) The change made by the petitioner on the cover of the aforesaid file was not brought to the knowledge of the Deputy Government Advocate-Shri V.K Sharma by the petitioner.
5. In support of the petition, first of all it was submitted by the learned counsel for the petitioner that at the time of commission of the alleged offences, petitioner being an Additional Government Advocate was working in the capacity of a public servant removable only by the sanction of the State Government and the alleged offences were committed by him while acting or purporting to act in the discharge of his official duty as a public servant and, therefore, as per Section 197 Cr. P.C, cognizance could not have been taken against him except with the previous sanction of the State Government and, therefore, cognizance taken against the petitioner is bad in law as it is an admitted fact that no such sanction was obtained from the State Government to prosecute the petitioner. It was further submitted that provisions of Section 197 Cr. P.C are mandatory in nature and in absence of a valid sanction, the order of cognizance as well as the order of framing of charge being void ab-initio is liable to be quashed and set aside.
6. In support of his submissions, learned counsel for the petitioner relied upon the cases of Phool Singh v. State of Rajasthan reported in 1993 Cr. L.J 3273 (Rajasthan High Court) : RLW 1993 (1) Raj. 402, State of Orissa v. Ganesh Chandra Jew reported in 2004 Cri. Law Journal 2011 (SC), Dr. P. Surya Rao v. H. Annapurnamma reported in 1981 Criminal Law Journal 1191 (M.P High Court), Matajog Dobey v. H. C. Bhari reported in AIR 1956 SC 44.
7. On the other hand, it was submitted by the learned Public Prosecutor that at the time of commission of the said offences the petitioner was neither a public servant nor it can be said that the act of the petitioner constituting the aforesaid offences was part of his official duty and, therefore, provisions of Section 197 Cr. P.C are not at all applicable and, therefore, the order of cognizance or subsequent order of framing of charge cannot be held to be bad in law even in absence of sanction as envisaged under Section 197 Cr. P.C
8. On consideration of submissions made on behalf of the respective parties and the material made available on record and the well settled legal position, even if for the sake of arguments it is admitted that at the time of commission of the alleged offences, the petitioner in the capacity of Additional Government Advocate was a public servant not removable from his office without prior sanction of the State Government, even then, it cannot be said that the order of cognizance and impugned order of framing of charge to the extent of petitioner is bad in law because by any stretch of imagination, it cannot be said that the act found of the petitioner constituting the aforesaid offences or his role attributed in the commission of the offences was part and partial of his act or purporting act in the discharge of his official duty attracted duty attached to the office of a Government Advocate or Public Prosecutor.
9. In the case of Matajog Dobey v. H. C. Bhari (supra), Hon'ble Supreme Court has held that the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What the Court must find out is whether the act and the official duty are so inter-related that one can postulate reasonable that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.
10. In the case of State of Orissa v. Ganesh Chandra Jew (supra), it was held by Hon'ble Supreme Court that use of the expression ‘official duty’ implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. Official duty, therefore, implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned.
11. It is thus clear that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 Cr. P.C and not even every act done by him while he is actually engaged in the performance of his official duty.
12. In the case of Harihar Prasad, Etc. v. State Of Bihar reported in (1972) 3 SCC 89, it was held by Hon'ble Supreme Court that as far as the offence of criminal conspiracy punishable under Section 120-B readwith Section 409 of the Penal Code is concerned and also Section 5(2) of Prevention of Corruption Act are concerned, they cannot be said of the nature mentioned in Section 197 Cr. P.C It is no part of the duty of a public servant, while discharging his official duty, to enter into a criminal conspiracy or to indulge in a criminal misconduct. Want of sanction under Section 197 Cr. P.C is, therefore, no bar to a prosecution under Section 120-B readwith Section 409 of the Penal Code. Similar view was also expressed in the case of State Of Kerala v. V. Padmanabhan Nair. reported in (1999) 5 SCC 690 : RLW 1999 (2) SC 366.
13. In the case of State Of Uttar Pradesh v. Paras Nath Singh reported in (2009) 6 SCC 372, it was held by Hon'ble Supreme Court that for the offences under Section 409 and Section 468 IPC sanction for prosecution under Section 197 Cr. P.C is not required, as these offences are not committed in the discharge of official duty.
14. In the case of Prakash Singh Badal v. State of Punjab reported in (2007) 1 SCC 1, it was held that the offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 & 120-B IPC can by no stretch of imagination by their very nature by 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.
15. In view of the well settled legal position, the submissions made on behalf of the petitioner on the ground of absence of prosecution sanction as required under Section 197 Cr. P.C are rejected.
16. It was next submitted by the learned counsel for the petitioner that so far as offences under Sections 466, 467, 468, 471 & 474 IPC are concerned in view of Section 195 Cr. P.C, cognizance for them can be taken only on a complaint of the Court in whose record the alleged forgery has been committed and in the present case in absence of such complaint, the order of cognizance as well as the subsequent order of framing of charge is bad in law.
17. In support of his submissions, learned counsel for the petitioner relied upon the cases of Manoranjan Khatua v. State of Orissa reported in 1990 Criminal Law Journal 1583, Gopalakrishna Menon v. D. Raja Reddy reported in (1983) 4 SCC 240 : AIR 1983 SC 1053, M.S Ahlawat v. State of Haryana reported in 1999 (4) Crimes 297 (SC), Babu Lal v. State of Rajasthan reported in RLR 1998 (1) 167 (Raj High Court), Ashok v. The State reported in 1987 Cri. L.J 1750, Daulat Ram v. State Of Punjab reported in AIR 1962 SC 1206.
18. On the other hand, it was submitted by the learned Public Prosecutor that in the present case Section 195 Cr. P.C is not applicable as the prosecution case is that order dated 30.5.2007 was forged and fabricated first and subsequent to that it was placed in the concerned Court file.
19. The prosecution case is that on 30.5.2007 the aforesaid case was adjourned and to that effect order-sheet was drawn and it was also signed by the Hon'ble Judge presiding over the Court No. 7, but in pursuance of the criminal conspiracy entered into between the petitioner and co-accused, a forged and fabricated order dated 30.5.2007 was prepared by one of the co-accused Shri Ummed Singh and he also signed in the name of Hon'ble Judge and replaced it in the file with the original order-sheet and also destroyed the same. Thus, it is not the case of the prosecution that forgery was committed in respect of a document which was already part of the record of the Court.
20. In the case of Sachida Nand Singh v. State of Bihar reported in (1998) 2 SCC 493 : AIR 1998 SC 1121 : RLW 1998 (2) SC 174, a Bench of Three Hon'ble Judges of Hon'ble Supreme Court held that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.
21. In the case of Iqbal Singh Marwah v. Meenakshi Marwah reported in (2005) 4 SCC 370, a Constitutional Bench of Five Hon'ble Judges of the Hon'ble Apex Court after considering several previous decisions has held that Section 195(1)(b)(ii) Cr. P.C 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 document was in custodia legis.
22. Similar view has been reiterated by the Hon'ble Supreme Court in the cases of Rugmini Ammal (Dead) by LRS v. V. Narayana Reddiar reported in (2007) 12 SCC 611 and George Bhaktan v. Ramindar Lele reported in 2014 (11) Scale 613.
23. In view of the aforesaid well settled legal position and in the facts and circumstances of the case provisions of Section 195 Cr. P.C are also not applicable and, therefore, the submissions to that effect made on behalf of the petitioner are also rejected.
24. Lastly, it was contended that for the sake of arguments even if the allegation levelled in the FIR and the evidence collected during investigation, which has been produced before the trial Court in the form of charge-sheet, is taken at its face value and is considered to be correct and true in entirety even then no offence is made out against the petitioner. It was submitted that no specific role has been found of the petitioner and there is no iota of evidence that prior to commission of the said offences he entered into criminal conspiracy with the co-accused or any of them. It was further submitted that at the relevant time the petitioner was not deputed to appear as Government Advocate or Public Prosecutor on behalf of the State Government in the Court concerned and he was not having access to the Court file and, therefore, there was no occasion for him to forge and fabricate the order dated 30.5.2007 So far as forgery made in the file maintained by the office of Government Advocate is concerned, in absence of FSL report it cannot even prima facie be said that it was the petitioner, who made forgery in it. In support of his submissions, learned counsel for the petitioner relied upon the case of State of U.P v. Sukhbasi reported in 1985 Criminal Law Reporter (SC) 350.
25. On the other hand, it was submitted by the learned Public Prosecutor that the allegations levelled in the FIR and the evidence collected during investigation, which has been placed on record in the form of charge-sheet, prima facie shows involvement and active participation of the petitioner also in the incident. It was further submitted that at the stage of framing of charge only prima facie has to be seen whether sufficient grounds are available to proceed further against an accused and even strong suspicion is enough to frame charge.
26. On consideration of submissions made on behalf of the respective parties and the evidence collected during investigation and the well settled legal position, I prima facie found that sufficient grounds are available on record to proceed against the petitioner. Learned Court below after following the well settled legal position had ordered to frame charge against the petitioner also for the aforesaid offences and no illegality or perversity has been committed by it requiring interference by this Court. The specific act/role found of the petitioner in the incident has already been referred above. The well settled legal position is that at the stage of framing of charge for an offence against an accused only prima facie has to be seen whether sufficient grounds are available on record to proceed against him and even strong suspicion is enough to frame charge and at this stage of the proceedings, evidence is not required to be analysed as it is required to be done at the final stage after trial.
27. In the case of Sajjan Kumar v. Central Bureau Of Investigation of Investigation reported in (2010) 9 SCC 368 : 2010 (4) RLW 3435 (SC), Hon'ble Supreme Court in para No. 21 of the judgment has laid down the principles, which are to be kept in mind by the Court while exercising jurisdiction under Sections 227 & 228 Cr. P.C, which are as below:
(i) The Judge while considering the question of framing the charges under Section 227 Cr. P.C has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima faice case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the state of Sections 227 & 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused at this stage, he is not to see whether the trial will end in conviction or acquittal.”
28. In the case of Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460, Hon'ble Supreme Court has held that 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.
29. In the case of Sheoraj Singh Ahlawat v. State of Uttar Pradesh reported in (2013) 11 SCC 476 : 2013 (1) RLW 810 (SC), has held as below:
“While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charges against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted.
Whether the prima facie case made out depends upon facts and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charge.”
30. On the basis of act/role found of the petitioner in the incident in the light of the aforesaid legal position, I am of the opinion that essential ingredients of each and every offence for which the charge has been framed against the petitioner is prima facie available on record. In the present case, the role and act of the petitioner at various stages of the incident disclose that he was involved in the criminal conspiracy with the co-accused in pursuance of which the other offences were committed. Legal position is that to be a conspirator it is not necessary for him to take part in each and every step leading to an offence.
31. Consequently, the misc. petition being meritless is, hereby, dismissed.