Rajbir Sehrawat vs State of Haryana

K.K. Srivastava, J.

By means of this petition filed under Section 482 Cr.P.C., the petitioner seeks quashing of FIR No. 97 dated 8.3.1996 registered under Sections 420, 332, 353, 186, 506 IPC, Police Station Civil Lines, Rohtak, copy annexure P3 and the order framing charge, copy Annexure P4 as also the charge sheet framed against the petitioner vide copy Annexure P5.

It has been alleged that the petitioner, Rajbir Sehrawat was blessed with a daughter on 27.3.1993. Information regarding the birth of the daughter could not be furnished to the Registrar, Births and Deaths within the prescribed period. The petitioner, however, sent a letter dated 19.1.1996 and furnished information regarding the birth of the daughter in his family. A copy of the letter has been placed on record as Annexure P1. The letter was accompanied by other requisite documents including a certificate of the Staff Nurse who attended the birth of the child (copy Annexure P2). It has been contended that the information given by the petitioner vide Annexure P1 was to be forwarded to the Magistrate, Ist Class i.e. Sub Divisional Magistrate, by the District Registrar unless he found the information to be frivolous. The Sub Registrar of the area, however, did not put the information to the District Registrar to the effect that the application given by the petitioner was frivolous. At the same time the said information was not forwarded to the Sub Divisional Magistrate for ascertaining the correctness of the information. It is alleged that the Sub Registrar got FIR registered against the petitioner by moving the Deputy Commissioner and the Superintendent of Police, copy of the FIR is annexed as Annexure P3. It has also been contended that there was no document before the Sub Registrar to come to the conclusion that the birth of the child had not taken place on 27.3.1993 and that the Sub Registrar was not competent to look into this aspect. The petitioner, it is alleged, is a practising Lawyer and he could not have behaved in the manner as alleged in the impugned FIR. On the other hand, it was the Sub Registrar who misbehaved with the petitioner by using objectionable language. The petitioner has filed a criminal complaint against the Sub Registrar and she has been summoned by the Court. The learned Judicial Magistrate, Ist Class, Rohtak proceeded to frame charges against the petitioner under Sections 511, 332, 353 and 186 IPC and the charge sheet framed by the learned Judicial Magistrate, Ist Class showed that the learned Magistrate converted the Section 420 into Section 511 IPC and dropped the charge under Section 506 IPC. The FIR and the order framing the charge beyond charge sheet are challenged on the ground, inter alia, that the authorities were bound to act under the Registration of Births Act as per the procedure prescribed under the Act and the Rules which was a special enactment. It was further contended that giving false information is an offence punishable under the Registration of Births Act and as such this matter could not be brought under Section 420, 511 IPC. The general law has to give way to the special law.

The District Registrar exceeded his jurisdiction in considering the information to be frivolous as the same matter fell within the jurisdiction of the Magistrate of the Ist Class. There was nothing on record with the prosecution to prove that the birth had not taken place on 27.3.1993 and it was contended that simply because the prosecution alleged that a child was born on 27.3.1993 could not belie the birth taking place on 27.3.1993. There is no legal or natural presumption against the birth of two children at a gap of one year. It has also been contended that the trial Court has gone wrong in not appreciating Section 195 Cr.P.C. and he could not take cognizance of the offence punishable under Section 186 IPC and other offences which are only aggravated form of this offence except on a written complaint by the public servant concerned. The cognizance could not be taken on the police report.

Notice was issued to the respondent, State of Haryana on whose behalf reply was filed by the Sub Inspector, Station House Officer, Police Civil Lines, Rohtak. It was not disputed that as per the Rules the Sub Registrar was not competent to look into the truthfulness of the alleged birth. The application of the petitioner was required to be forwarded to the Magistrate for enquiring into the birth. The recording of the FIR, Annexure P3, was admitted. It was contended that the respondent possibly cannot have any objection in following the procedure prescribed by law at any time. The police sent the challan to the Illaqa Magistrate against the petitioner under Sections 420, 332, 353, 186 and 506 IPC on the basis of earlier registration of a birth. Thereafter the charges were framed by the learned Judicial Magistrate, Ist Class, Rohtak under Sections 511, 186, 332, 353 IPC.

I have heard the learned counsel for the petitioner and the learned State counsel and have carefully perused the record of the case.

The Hon''ble Supreme Court has in the case of Minakshi Bala v. Sudhir Kumar, 1994(3) RCR 123 held that once the charges have been framed against the accused, he cannot seek the quashing of the FIR/complaint. The remedy of such an aggrieved person, i.e. the accused would be to challenge the order of framing the charge. Since the petitioner did not seek the quashing of the FIR prior to the framing of the charge, he cannot be allowed to raise the plea regarding the quashing of the FIR after the framing of the charge. Therefore, the allegations in respect of the quashing of the FIR cannot be allowed to be raised at this stage.

So far as the framing of the charge is concerned, the learned counsel for the petitioner has contended that the matter of framing charge of the charges was not properly considered by the learned Judicial Magistrate, Ist Class, Rohtak and the submissions of the petitioner were not duly noticed. He has referred to the order of framing the charge and contended that the learned Judicial Magistrate, Ist Class referred to in para 8 of the order, copy Annexure P4 to an authority of Bhagat Ram''s case regarding the jurisdiction of the Court to take cognizance of the offence under Sections 186 IPC being barred except on a complaint in writing of the public officer or some other public servant to whom he is administratively subordinate. The learned Judicial Magistrate, Ist Class after referring to the said case held that the said authority is of no force and held that when the offence under Section 186 IPC is cognizable offence, there is no question of public servant concerned to make a complaint in writing to the Court. Sections 332 and 353 IPC are again cognizable and the authority cannot be applied.

However, a careful perusal of the order, copy Annexure P4, will go to show that there is no reference earlier made to the case of Bhagat Ram. Learned Counsel for the petitioner contended that the learned Judicial Magistrate, Ist Class made a reference to the case of Bhagat Ram without giving its proper citation and distinguished the same for no valid reasons. Even otherwise, the various pleas raised by the petitioner, it is urged, were not properly heard and disposed of. It has also been mentioned that the charge under Section 511 IPC read with Sections 332, 353, 186 IPC was framed. Section 511 provides punishment for attempts to commit offence. If the petitioner was accused of attempting to commit cheating, an offence punishable under Section 420 IPC, the charge independently under Section 511 IPC was not to be framed. The relevant discussion in this regard is to be found in para 7 of the impugned order which reads as under :

"It will also be desirable to refer to case titled Tulsi and others v. State of U.P., AIR 1967 Supreme Court 666, relied upon and by Ld. APP for the State in support of his argument that the accused obtained wrongful gain though there was no wrongful loss to the complainant and thus he committed an offence under Section 420 IPC. This authority is of no benefit to the prosecution as in that case, the accused by obtaining credits for large amounts on the strength of Hundis supported by forged railway receipts had made a wrongful gain. In our case a second birth certificate was not issued to the accused and therefore, we cannot hold that he prima facie committed the offence of cheating under Section 420 IPC, rather he only attempted to cheat."

After carefully considering the averments made by the learned counsel for the petitioner and hearing the learned State counsel, I find that the learned Judicial Magistrate, Ist Class has not properly dealt with the submissions of the petitioner and has not properly dealt with the law relating to the framing of appropriate charges. The petition is allowed to the extent that the order of framing the charges on the charge sheet Annexure P3, P4 and P5 are set aside and the case is sent back to the learned Judicial Magistrate, Ist Class, Rohtak to offer a reasonable opportunity of hearing to the petitioner and the State counsel and then proceed to consider the matter of framing the charges on the material placed on record and in accordance with law.

The petitioner is directed to appear before the learned Judicial Magistrate, Ist Class, Rohtak, on 16.12.1998.