Ashok Kumar Jain vs State Of Rajasthan And Ors

The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. for quashing of the FIR No.308/2015 registered at Police Station Gangrar, District Chittorgarh for the offences under Sections 420, 467 & 468 of IPC.

Brief facts of the case as noticed by this Court are that the present petitioner was elected as Sarpanch of Gram Panchayat Mandapiya, Panchayat Samiti Gangrar, District Chittorgarh. The complainant did not participate in the election, and as such he is not at all the person aggrieved, and the person, who could not succeed in the election has already filed an election petition against the present petitioner.

The impugned FIR has been filed against the petitioner by a villager who was not even a candidate in the elections nor he raised any objection at the time of filing of the nomination form. Thus, the present FIR has been filed by the complainant just to harass the petitioner and nothing else, and thus, the same is a politically motivated FIR, since the petitioner was elected as a Sarpanch. In this FIR, the complainant has alleged that forged documents have been created and that a wrong affidavit has been annexed alongwith the nomination form.

At the outset, learned counsel for the petitioner submits that the judgment rendered by this Hon'ble Court in Yashoda & Anr. Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No.1798/2015) decided on 31.05.2016 is applicable in the present case. The relevant portion of the said judgment reads as follows:

"Heard learned counsels for the rival parties and perused the impugned FIR.

The cheating is defined in section 415 of the Indian Penal Code, which reads as under:

"415. Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

For the offence of cheating, there should be an averment in the complaint that the accused by using fraudulent means induces a person so cheated to deliver some valuable security etc.

Similarly, for the offence of forgery, the document in issue should be a false document as defined in section 464 of the Indian Penal Code, which reads as under:

"464. Making a false document- A person is said to make a false document or false electronic recordFirst- Who dishonestly or fraudulently-

(a) makes,signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any electronic signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or ThirdlyWho dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record of the nature of the alteration."

From bare reading of the impugned FIR, it is clear that there is no averment to the effect that the accused by using fraudulent means induces the complainant or any person so cheated to deliver some valuable security etc. Hence, the offence punishable under section 420 IPC cannot be said to be made out from allegations contained in the impugned FIR.

It is noticed that in the impugned FIR, there is no allegation to the effect that the petitioners have prepared a false document and used it as a genuine one. The main allegation in the impugned FIR against the accused is to the effect that the petitioner No.1 furnished false declaration regarding her children in the nomination form and on the basis of which, she contested the election though she was not qualified to do so. Furnishing false information before a public servant cannot be equated with the execution of a false document. If what is executed is not a false document, there is no forgery and if there is no forgery, then no offence under the provisions of sections 420, 466, 467, 468, 471 and 120-B IPC is made out.

The Hon'ble Supreme Court in State of Haryana & Ors. vs. Bhajan Lal & Ors., 1992 SCC (Cri) 42 has held as under:

"102. 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) 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."

In the above referred judgment, the Hon'ble Supreme Court in sub paras (2) and (4) of para No.102 has held that where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code, then the FIR can be quashed.

Upon perusal of the impugned FIR, it is apparent that the main allegation in the impugned FIR against the accused is to the effect that the petitioner No.1 furnished false declaration regarding her children in the nomination form while contesting the election. If the said allegations of the complainant are accepted to be true then too, the offence, which at best can be said to be committed by the accused would be of making statement in connection with an election which is punishable under section 171-G IPC or furnishing false information to any public servant punishable under section 177 IPC or the offences punishable under sections 181, 193, 199 and 200 IPC. However, all the above mentioned offences are non-cognizable offences. As per the provisions of sub-section (2) of section 155 CrPC, a Police Officer cannot investigate into the allegations of non-cognizable offence without any order of the Magistrate having power to try such case or commit the case for trial, however, no such order of the Magistrate concerned is available on record.

In view of above discussions, this Court is of the opinion that the impugned FIR is liable to be quashed.

Consequently, the instant criminal misc. petition is allowed and the impugned FIR No.24/2015 lodged at Police Station, Sheruna, District Bikaner is quashed. However, it will be open for the complainant or the officer, before whom any false information or evidence is furnished by the accused persons, to avail appropriate remedy as provided under the law.

Stay petition stands disposed of."

Learned counsel for the respondents are not in a position to refute the applicability of the aforementioned precedent law, However, they opposed the submissions made on behalf of the petitioner on merits.

In light of the aforementioned precedent law, the present petition is allowed in the same terms and the FIR No.308/2015 dated 01.09.2015 registered at Police Station Gangrar, District Chittorgarh is hereby quashed and set aside.