1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT KARNI SINGH RATHORE VS. STATE OF RAJ. & ANR. S.B.Criminal Revision Petition No.686 of 1999 under Section 397 read with section 401 Cr.P.C. against the order dated Sept. 16, 1999 of Judicial Magistrte No.5 Kota in Case No. 431 of 1999 taking cognizance against the accused petitioner under sections 166, 167, 193, 218, 409, 466 and 120 B IPC along with Ram Chandra Meena and issuing warrant of arrest for procuring their attendance. Date of Order : March 18 , 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. A.K.Gupta, for the petitioner Mr. R.P.Vijay, for non-petitioner No.2. Mr. Pradeep Srimal, Public Prosecutor for the State. REPORTABLE BY THE COURT : The petitioner Karni Singh Rathore, has filed this revision petition against the order dated Sept. 16, 1999 of Judicial Magistrate No.5 Kota in Case No. 431 of 1999 taking cognizance against the accused petitioner under sections 166, 167, 193, 218, 409, 466 and 120 B IPC along with Ram Chandra Meena and issuing warrant of arrest for procuring their 2 attendance. 2. The facts in brief are that the complainant non-petitioner filed a complaint against the accused petitioner and other Junior employee of Nagar Nigam Kota on May 29, 1997. The allegations as mentioned in the complaint are that the accused Karni Singh called the complainant as Sweeper (Bhangi) on which he raised an objection. The non-petitioner used to agitate regarding the rights of Schedule Caste People and the accused petitioner Karni Singh wanted to remove him from the job. In order to achieve his object he in conspiracy with Ramchander Meena, LDC made fraudulent entries in the service record of complainant Kalyan. For the date of birth 12.2.1952 fresh date has been introduced as 12.2.1933. This forgery by both the accused in the service record of Kalyan was made to cause wrongful loss and removing complainant Kalyan from service, 19 years prior than the date on which he would have retired. This forgery is apparent on the face of record. If complainant Kalyan would have been born on 12.2.1933 he could not have been appointed on 17.7.1980 because on that date he would have attained the age of 47 years. The complainant 3 examined himself as a witness under section 200 Cr.P.C. The trial court without considering the facts and cirucmstances of the case and the legal aspect of the case, took cognizance against the accused petitioner and co -accused Ram Chandra meena under various provisions of law, as mentioned above and directed to issue warrant of arrest for procuring their presence in the case vide order dated September 16, 1999. The revision petition was filed challenging the order taking cognizance on September 30, 1999. On October 4, 1999, this court stayed the operation of the order dated September 16, 1999 till further orders. On January 31, 2007, this court confirmed the stay order granted on October 4, 1999. 3. I have heard learned counsel for the parties and gone through the material available on record. 4. Mr. A.K. Gupta, learned counsel for the petitioner submitted following submissions : It is clear that the complainant has not mentioned a word that how his age was mentioned as 12.2.52 and who mentioned the same. He has also not mentioend that when his date of birth was changed as 12.2.1933 and when he came to 4 know about this fact. From the impugned order it is clear that the date of birth was changed by Ram Chandra Meena, LDC and the accused petitioner only verified the same. If the complaint as a whole is taken on its face value, even then no offence has been committed by the accused petitioner. The petitioner has neither mentioned nor stated that how this date of birth was changed. Admittedly no document was submitted by the complainant in support of his date of birth. Thus, the trial court has committed an illegality in taking cognizance against the petitioner. The trial court did not consider this aspect of the case that the complainant even did not mention in his complaint that what offence has been committed by the accused petitioner. This complaint was submitted by a lawyer and in these circumstnaces it was the duty of the complainant to mention that what offence has been committed by the accused petitioner but inspite of this fact the trial court has taken cognizance against the accused petitioner under the various provisions of law. It seems from the impugned order that the trial court did not like to go through the provisions of law, under which the cognizance has been taken. If the trial court would have looked into the provisions of law and considered the same then the trial court could not take cognizance against the petitioner under these provisions of law. Thus it is 5 clear that the trial court took cognizance against the accused petitioner without applying its mind. Section 166 IPC related to public servant disobeyed of law being a public servant with intent to cause injury to any person. There is nothing in the complaint or in the statement to show that there was any direction of law as to where in which he has to change as public servant and the accused petitioner has failed to disobey this direction. This provision of law is not at all attracted on the basis of complaint. The maximum sentence/punishment under this provision of law is one year. As per the case of the complainant, he retired in the year 1993. At worst, the complainant came to know about date of birth in 1993 only and there was no occasion for him to wait till 29.5.97 i.e. more than 4 years. Taking of cognizance under this provision is barred by limitation, in view of section 468 Cr.P.C. The trial court also taken cognizance against the petitioner under section 167 IPC, which is related for framing an incorrect document with intent to cause injury by a public servant. Admittedly the date of birth was not changed by the accused petitioner, and it was changed by Ramchandra Meena,LDC, but the petitioner only verified this fact. There is no allegation against the accused petitioner either in the complaint or in the statement. The above admitted position comes out from the impugend order in which the trial court while taking cognizance has mentioned that Ram Chandra 6 Meena, LDC changed the date of birth. In these cirucmstances it is clear that there is no evidence against the accused petitioner for taking cognizance under section 167 I.P.C. Maximum sentence under this provision is 3 years, thus the period of limitation is 3 years. Thus the trial court has committed illegality in taking cognizance against the accused petitioner. Provision of section 193 IPC is related for creating false evidence. This provision shows that any person, who gives false evidence in any stage of a judicial proceedings or fabricated false evidence for the purpose of being used in any stage of a judicial proceeding then it will be said that he has committed the offence under this provision of law. There is not a single word to attract this provision of law in the complaint or stated by the complainant in his statement, recorded under section 200 Cr.P.c. The maximum sentnece is 3 years, for violation of this provision. The period of limitation in view of section 468 Cr.P.C. is 3 years and it is also barred by limitation. The trial acourt did not consider the provisions of sections 218 IPC. It is in connection with framing incorrect record or writing with intent to save person from punishment or property by a public servant and the maximum sentence is 3 years. Thus this provision is also barred by limitation under section 468 Cr.P.C. 7 Section 409 IPC is related to criminal breach of trust by public servant, or by banker, merchant or agent and ingredient of this section is that if any person in any manner entrusted with property, or with any dominion over property in his capacity of a public servant, committed breach of trust in respect of that property, then it will be said that he has committed the offence under this provision of law. Provisions of section 466 IPC related to forgery of record of court or of public register. As per the case of the complainant, the date of birth has been changed in the record of the complainant at the time of the permanent appointment. It is a case of complainant that when he was appointed permanent then his date of birth was mentioned as 12.2.1933 and when he was appointed on the temporary post on 17.7.80 then at that time his date of birth was mentioned as 12.2.52. This fact is not correct by any material available on record. There is nothing on the record to show that the date of birth of the complainant was 12.2.52 and it was changed at the time of giving permanent appointment or any point of time. Prima facie no offence has been committed by the accused petitioner and the trial court failed to apply its legal mind on this aspect of the case and committed an illegality in taking cognizance. The trial court mentioned in the order that the provision of section 197 Cr.P.c. is not applicable in view of the judgment reported in 1998 (2) RLW page 938 Gomda vs. Rameshwar Dayal 8 and others. It was not at all applicable in the facts of this case. It is well settled law that if any officer committed any offence, during his tenure or working a Govt. Servant then no court shall take cognizance without prior sanction by the competent authority. There was no occasion for the trial court to issue warrant of arrest in such a matter for procuring the presence of accused. The trial court has not properly considered the provisions of Cr.P.C. and erred in issuing the warrant of arrest against the accused petitioner. The trial court has not properly considered that why the FIR was not lodged immediately after the incident and why this complaint was submitted after expiry of more than 4 years. This fact is very vital in the facts of this case. And without explanation there was no occasion for the trial court to take cognizance against the accused petitioner. (5) Mr. Pradeep Srimal, Public Prosecutor filed written submissions. Following submissions have been made in the written submissions : False certificate regarding age has been prepared by both the accused and the same is punishable under section 197 IPC and 218 IPC causing injury to Kalyan. Only process has been issued. The case is at the initial stage of the case it was open to 9 the accused to contest the charge or make their own submission but instead of doing so they have straight way approached the High Court which is not permissible. Issuing a process is a interlocutory order, no revision can be filed against such order. Section 397 (ii) prohibits filing of such a revision. It reads that the power of revision conferred by sub section (i) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. Issuing of process is not a final order. It does not finally determine any person's right. The affected party can go before the same court who had issued the process and argued against the order at the time of framing of charge or even before. The petitioner supported by a senior counsel knows it fully well that offence u/s 466 IPC is punishable upto 7 years imprisonment and the provisions of section 468 Cr.P.c. do not apply to it. Sub clause 3 of section 468 Cr.P.C. reads as under : "468. Bar of taking cognizance after lapse of the period of limitation. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishmemnt." As section 466 IPC provides punishment upto 7 years and 409 IPC provide punishment 10 upto life imprisonment or 10 years. The record was with the accused; they changed and thus committed breach of trust and caused loss of job to Kalyan. The question of limitation does not arise regarding offences punishable under sections 166, 167, 193, and 218 IPC because these offences stand covered under sub-section 3 of section 468 Cr.P.C. Reliance was placed on Nirmal Kanti Roy vs. State of West Bengal AIR 1998 SC 2322, wherein at paragraph 18, the Apex Court observed as under : "As the offence under s. 7(1)(a) (ii) of the EC Act is punishable with imprisonment under S. 468 of the code. It is, therefore, unnecessary for us to consider whether the curative provision in S. 473 of the Code should have been invoked." State of Himachal Pradesh vs. Tara Dutt and another AIR 2000 SC 297, the Apex Court has observed as under : "Criminal P.C. (2 of 1974), (S. 468 (3)- Limitation for taking cognizance – Charges framed for major offences for which no limitation is provided- Conviction however, in respect of minor offences- Cognizance not barred if on date of cognizance for minor offences, the same was barred under S. 468 – Limitation provided under S. 468 – Is in respect of offence charged and not offence finally proved." The Senior Counsel knowing fully well that committing forgery in Govt. record is not a part of duty of a Govt. Servant. No doubt the chair provides him an opportunity to do so. Reliance was placed on Ronald Wood Mathams and others vs. State of West Bengal AIR 1954 SC 455 placing reliance on a judgment of Privy Council the Apex Court held "Sanction under S. 197 is 11 not necessary for instituting proceedings against a public servant on charges of conspiracy and bribery." In Harihar Prasad etc. vs. The State of Bihar 1972 Cr.L.J. 707, the Apex Court held : "The offence of criminal conspiracy punishable under section 120 B read with section 409 IPC and under section 5(2) of the PC Act cannot be said to be of the nature mentioned in S. 197 of Cr.P.C. It is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 is therefore, no bar." In Shambhoo Nath Misra vs. State of U.P. and others AIR 1997 SC 2102, the Apex Court held: "5. The question is: when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. Can be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc. In furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc." The case is at the initial stage of issuing of process but the accused instead of appearing before the Magistrate has come to this Hon'ble High Court. At this stage the court is required to see only prima facie case, the Court is not required to appreciate the evidence and arrive at the conclusion that material produced are sufficient or not for convicting the accused. 12 6. I have gone through the entire material available on record and the order passed by the trial court. In my opinion the order passed by trial court deserves to be set aside in the facts and circumstances of the case and the matter should be remanded back to him to again hear both the parties and pass fresh order. Any comments at this stage in the matter will prejudice either case of the parties. 7. For these reasons, the revision petition is allowed and the order of the trial court dated September 16, 1999 is set aside and the matter is remanded back to the trial court (Judicial Magistrate No.5 Kota) for rehearing the parties and pass a fresh order within fifteen days after receipt of certified copy of the order of this court. As the main petition has been disposed the stay application also stands disposed. (Mahesh Chandra Sharma) J. OPPareek/