Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application (C-482 Cr.P.C.) No. 561 of 2005 Bupender Singh .….…… Petitioner. versus State of Uttarakhand ………. Respondent. Mr. S.S.Panwar, Senior Advocate assisted by Shri H.C.Pathak, Advocate for the petitioner. Mr. Prabhakar Joshi, Brief Holder, for the State / respondent. JUDGMENT Per : U.C. Dhyani, J. 1. This petition under Section 482 Cr. P.C. has been filed with the prayer to quash the summoning order dated 10.06.2002 passed by the Chief Judicial Magistrate, Hardwar in case no. 1919 of 2002 State vs. Bhupender Singh relating to case crime no. 274 of 2001 under Sections 420, 468 & 471 IPC and also to quash the Charge- sheet filed by the I.O. in this case. 2. Brief facts giving rise to this case are that the accused-applicant Bhupender Singh had applied for the recruitment of Constable in the Uttarakhand Police on 31.08.2001 through a written application form to the S.S.P., Hardwar on a prescribed format and on the basis of the above application, the applicant was registered being registration no. 505 in that office. The applicant after undergoing the physical test etc. on qualifying the above was allotted chest no. 307 in the next exercise and then in a written test and thus successfully qualified the requisite norms declaring 250 candidates 2 fit but on the medical grounds four out of those candidates found unfit and thus 246 candidates were finally selected in the recruitment as constable. On the basis of the above final selection all the selected candidates were asked to report in the office of SSP, Hardwar on 10.10.2001. All these candidates appeared there. The petitioner and all other candidates were asked to deposit Rs. 50 each with a person present there who collected the said amount and got scrutinized on a printed proforma from each selected candidate through the above procedure and the petitioner also taking it to be same formality of the procedure signed those printed proformas in ordinary course without inquiring about it and without knowing the nature of the printed material. The applicant could know about the nature of the above said printed proforma that it was an affidavit and the declaration printed on it pertained to the details of registration of criminal case etc. besides the other information only after the FIR of this case but it is made clear that if the other contents are taken to be true also the said affidavit is not covered under the definition of ‘affidavit’. 3. The complainant lodged an FIR against the applicant with the allegations that a false affidavit has been filed by the accused- applicant, Bhupender Singh, who had applied for the post of constable in Uttarakhand Police and was finally selected. This was disclosed on the complaint of one Sitaram who had moved a complaint that a Session Trial number 197 of 1999 under Sections 147, 148, 452 and 304 IPC is pending against the accused. Sitaram had also complained that applicant Bhupender Singh, undergoing training at Tehri, is a person of criminal antecedents. He had committed murder of one Surya Pratap s/o Sitaram. Smt. Poonam Sah, ASI who was engaged in the work of character verification, stated that a criminal case 124 of 1998 under Sections 147, 148, 452, 504 & 307 IPC is registered against the applicant Bhupender Singh and trial is pending against him. The allegation against the 3 applicant Bhupender Singh is that he had filed a wrong affidavit during the recruitment process that no criminal case is pending against him. He had wrongly deposed that no case has ever been registered against him. Another person Abhai Pratap had also lodged an FIR against him wherein charge-sheet has been filed and criminal trial is pending against him. Since wrong affidavit has been filed by Bhupender Singh, therefore a fresh FIR being case crime no. 274 of 2001 u/s 420, 468, 471 IPC was got registered against him at P.S. Ranipur, district Haridwar. The Investigating Officer has filed the charge-sheet against the accused and consequently the charge-sheet was registered in the court and summoning order was passed by the learned C.J.M, Hardwar. 4. It was contended by learned counsel for the applicant Bhupender Singh that it was not a condition in the recruitment that there must not be any criminal case registered against the candidate except that the candidate should not have been convicted any court. He had further contended that the document in question cannot be termed as an ‘affidavit’. It is only a proforma of the affidavit. The document in question is a printed form where the blank spaces have been filled as if it is a proforma. The alleged affidavit had never been read over and sworn in accordance with law. The applicant had no knowledge of the contents of the alleged affidavit as those were got prepared by the authorities in bulk at a time without providing him the knowledge of the contents and in a routine process of recruitment of the police constabulary. These proforma affidavits were not produced by the applicant or any other candidate before any authority or authorities whatsoever so there is no question of using the false and forged documents to one’s benefit. 5. It was further contended on behalf of the applicant that the said affidavit was not in accordance with the provisions of ‘Oaths Act’. In view of the above, it is not a valid charge-sheet and therefore the 4 cognizance taken by the learned magistrate is bad in law. The learned magistrate has issued the warrant against the accused without taking cognizance of the offences. The sections of IPC under which the applicant has to face the trial are also not disclosed. The arrest of the applicant Bhupender Singh was stayed by the Hon’ble Court. It is also submitted that on perusal of the list of witnesses given in the charge-sheet, it reveals that none of the witnesses to be relied upon by the prosecution during the trial relate to filing of false affidavit by the applicant. It is finally contended that the cognizance taken by the trial court in the above case is not sustainable. It is a gross abuse of the process of court, therefore the inherent powers of the High Court to prevent the above abuse needs interference to secure the ends of justice by quashing the charge-sheet dated 07.02.2002 and the summoning of the applicant by learned CJM vide order dated 10.06.2002 being without an order of cognizance on the charge-sheet. 6. On the other hand, learned counsel appearing for the State, Sri Prabhakar Joshi has vehemently opposed the contentions of the learned counsel for the applicant and has submitted that such a person against whom two criminal cases have been registered should be required to face the trial in accordance with law in relation to the above charges mentioned in the petition. He has also submitted that these are the questions of fact which can be gone into by the learned trial court only. The petition under Section 482 Cr.P.C. is liable to be dismissed being as not maintainable. 7. Hon’ble Apex Court in the case of M/s Pepsi Food Ltd. vs. Special Judicial Magistrate J.T. 1997 (8) SC 705 has held as follows : “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of 5 the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima-facie committed by all or any of the accused.” 8. The vital question which is to be examined by the learned trial court is whether the document in question signed by the applicant Bhupender Singh falls within the definition of an ‘affidavit’ or it is merely a proforma for character verification. It is expected that the learned trial court will peruse the said document and examine its language to decipher whether the said document really falls within the category of an ‘affidavit’ and the offence complained of against the applicant really comes within the periphery of Section 420, 468, 471 IPC? It is true that there are clauses 4 and 6 in the document under the caption of “Shapathpatra Ka Praroop” (Proforma of Affidavit) to show that the applicant has declared that neither any criminal case has ever been registered against him, nor any police investigation is pending against him nor is there any case pending trial against him. The applicant was supposed to furnish all these details correctly. Whether he has concealed/suppressed information which was required to be given by him or has committed forgery of the documents is a question of fact which can only be looked into by the trial court. 6 9. It will be worthwhile to mention here the ingredients of Section 177 IPC, which deals with furnishing false information for ready reference : “177. Furnishing false information.- Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six month, or with fine which may extend to one thousand rupees, or with both; Or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 10. Likewise, it will also be worthwhile to reproduce Section 181 IPC which deals with false statement on oath or affirmation to public servant or person authorized to administer an oath or affirmation. “181. False statement on oath or affirmation to public servant or person authorized to administer an oath or affirmation.- Whoever, being legally bound by an oath [or affirmation] to state the truth on any subject to any public servant or other person authorized by law to administer such oath [ or affirmation], makes, to such public servant or other person as aforesaid, touching the subject, any statement which is false, and which he either knows or believes to be false or does not believe to be true, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.” 11. Further, Section 191 IPC deals with giving false evidence. 12. ‘Cheating’ is defined in Section 415 IPC to mean that “whoever by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person…………….. or intentionally induces the person was deceived to it or omit to it anything which he would not do or omit if he were not so deceived……….. is said to ‘cheat’. 13. Cheating and dishonestly inducing the delivery of property is punishable under Section 420 IPC. 7 14. Whoever commits forgery intending that the document shall be used for the purpose of cheating is punishable under Section 468 IPC. 15. Whoever fraudulently or dishonestly uses as genuine any document which he knows or is reason to believe to be forged is punishable under Section 471 IPC. 16. Learned trial court is expected to go through all these provisions in order to find under which section (s) the offence complained of against the accused falls. 17. What is an affidavit ? According to Section 3(3) of the General Clauses Act, 1897; 3(3). ‘affidavit’ shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. 18. Section 3(37) of the General Clause Act defines ‘oath’ in the same language as above. 19. Section 6 of the Oaths Act, 1969 prescribes the forms of oath and affirmations to show that all oaths and affirmations made under Section 4 shall be administered according to such one of the affirmations given in the schedule as may be appropriate to the circumstances of the case. 20. Sub section (2) of Section 6 of the Oaths Act deals with how the oaths and affirmations shall be administered. 21. From perusal of the material on record and looking into the facts of the case, it cannot be said at this stage that no offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P.Kapoor vs. State of Punjab, AIR 1960 SC 866; State of Haryana vs. Bhajan Lal, 8 1992 SCC (Crl) 426; State of Bihar vs. P.P.Sharma, 1992 SCC (Crl) 192 and Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haqe and another, 2005 SCC (Crl.) 283 (para10). 22. Section 482 Cr.P.C. saves the inherent powers of High Court in three circumstances. Firstly, where the jurisdiction is invoked to give an effect to order of court. Secondly, if there is an abuse of process of the court and thirdly, in order to secure ends of justice. Inherent power can be exercised only for either of the three purposes. It cannot be invoked in respect of any matter covered by the specific provision of the court. It can not be invoked if its exercise would be inconsistent with any specific provision of the Code. New categories of inherent jurisdiction should not be invented. Apart from the above three categories, even where the courts below have committed any error of law or fact that by itself does not furnish any foundation for interference under section 482. The High Court possesses the inherent power to be exercised ‘ex debito justitiae’ to do the real and substantial justice but such power does not confer any arbitrary jurisdiction on the High Court to act according to its whims or caprice. The power under Section 482 is distinct from appellate or revisional jurisdiction. Inherent jurisdiction is to be exercised sparingly and with circumspection. The court should not embark upon the inquiry whether the allegations in the complaint would be established by the evidence or not. This Court (u/s 482 Cr.P.C.) cannot function as a court of trial and it is for the magistrate, seized of the case, to decide whether any prima facie case for summoning the accused is made out. This Court while exercising an inherent jurisdiction should not usurp the jurisdiction of the trial court. In matters where some relief can be given by the subordinate court normally higher authority should not exercise its power to give the same relief. 23. The defence of the accused relating to the document in question cannot be considered at this stage. Moreover, the applicant has got 9 an opportunity to argue over his right of discharge through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial court. The accused/applicant will have further opportunity to place his case during the trial and make his submissions before the learned trial court when arguments take place. 24. The last submission of the learned counsel for the accused/applicant is that the applicant is in regular service of Uttarakhand Police and there is no chance of his absconding, therefore suitable and appropriate directions may be issued so that the applicant may not be harassed. The prayer is innocuous. 25. The prayer for quashing the proceedings is thus refused. The Criminal Misc. Application is dismissed with a direction that the applicant should surrender before the learned trial court within a month from today and if he seeks bail, the same may be considered without unreasonable delay after hearing the prosecution keeping in mind the scheme of law as discussed in pages 5 to 7 of this judgment. (U.C. Dhyani, J.) Dt: September 23 ,2011 KKS 10