IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R No.24 of 2003 Date of decision : August 20, 2009 Suna Ram …Petitioner. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J(Oral) Revision Petitioner Suna Ram is aggrieved by the judgment, dated 26th March, 2002, of Sub Divisional Judicial Magistrate, Rampur Bushehr, whereby he has been convicted of offences, under Sections 420, 471 and 474, read with Section 34 of the Indian Penal Code, and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/-, for each of the aforesaid three offences, as also the judgment, dated 24th January, 2003, of learned Sessions Court, whereby his appeal against the aforesaid judgment of the Judicial Magistrate has been dismissed. So, he has filed the present petition. 2. Case of the prosecution, as per evidence on record, is like this. Revision Petitioner was employed as a Whether reporters of the local papers may be allowed to see the judgment? …2… Teacher in Education Department of Himachal Pradesh. In May, 1993, he made an application to Tehsildar, Nichar, for obtaining a certificate that he belonged to Scheduled Tribe, being resident of Scheduled Area of Kinnaur District. He claimed that he was resident of village Chaura, Tehsil Nichar, District Kinnaur. Tehsildar at that time was Bhagat Ram, who had been tried as co-accused with the Revision Petitioner and convicted and sentenced in the same manner as the Revision Petitioner. Said Tehsildar issued a certificate to the effect that the petitioner belonged to a Scheduled Tribe. Petitioner submitted that certificate to his employer and got promoted as Head Teacher, against a post reserved for Scheduled Tribe. 3. A complaint was made to the Chief Minister by the Employees’ union that the petitioner did not belong to a Scheduled Tribe, as his forefathers had migrated to a village in Rampur Tehsil of Shimla District long before the coming into force of the Constitution (Scheduled Castes and Scheduled Tribes) Order, 1950 and, therefore, he did not belong to a Scheduled Tribe and, hence, not entitled to the benefit of reservation. That complaint was marked to the Police for investigation. 4. During investigation, it was found that great grandfather of the petitioner had migrated to village Kandhar/1520 in Tehsil Rampur of District Shimla, after …3… disposing of his property in village Chaura of Tehsil Nichar, District Kinnaur. 5. Challan was filed against the present petitioner and Tehsildar Nichar, Bhagat Ram. Trial Magistrate charged the petitioner and said Bhagat Ram with offences, under Sections 420, 471 and 474, read with Section 34 of the Indian Penal Code, and convicted and sentenced them, as aforesaid. Present petitioner as also Bhagat Ram filed appeals against their conviction and sentence to the Sessions Court. Their appeals were dismissed, by a common judgment, i.e. the impugned judgment dated 24th January, 2003 of the Sessions Court. 6. I have heard the learned counsel for the petitioner as also the learned Assistant Advocate General. 7. Charge, under Sections 471 and 474, read with Section 34 of the Indian Penal Code, is not sustainable, as neither the petitioner nor his accomplice Tehsildar Bhagat Ram committed the offence of forgery nor is the certificate, in question, which is Ex. PW-9/B, a forged one. 8. “Forgery” is defined in Section 463 of the Indian Penal Code to mean a false document made with intent to cause damage or injury to the public or to any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or to commit any fraud or that fraud may be committed. …4… 9. “Making a false document” is defined in Section 464 of the Indian Penal Code, which reads as follows: “464. Making a false document.- A person is said to make a false document or false electronic record— First.—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 digital signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital 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 make, 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 digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature or 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 or the nature of the alteration. …5… Illustrations (a) to (k). xxx xxx xxx xxx Explanation 1.- A man’s signature of his own name may amount to forgery. Illustrations (a) to (e). xxx xxx xxx xxx Explanation2.- The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. Illustration xxx xxx xxx xxx Explanation 3.- For the purposes of this section, the expression “affixing digital signature” shall have the meaning assigned to it in clause (d) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000).” 10. From a bare reading of the provision of Section 464 of the Indian Penal Code, it is clear that to fall within the definition of “a false document”, the document should be made, signed, sealed or executed with the intention of causing it to be believed that it or a part of it is made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows it has not been made, signed, sealed or executed or the document should be altered by cancellation or otherwise, after it has been made, executed or signed without lawful authority of the person by whom it was made or executed or it should …6… be got signed, sealed or executed dishonestly or fraudulently from a person, who by reason of unsoundness of mind or intoxication or by reason of deception practised upon him does not know the contents of the document. 11. In the present case, none of the situations covered by Section 464 of the Indian Penal Code exists. So, the document does not fall within the definition of “making a false document” and consequently it is also not covered by the definition of “forgery”, under Section 463 of the Indian Penal Code. Certificate, alleged to be forged, is issued by Bhagat Ram, in his capacity as Tehsildar. It is not in dispute that Bhagat Ram was working as Tehsildar, at the relevant time. So, the document cannot be said to have been falsely made and, therefore, it is not a forged document. 12. For the foregoing reasons, conviction of the Revision Petitioner as also his co-accused Bhagat Ram for offences, under Sections 471 and 474 of the Indian Penal Code, is set aside and consequently the sentences for the said offences are also set aside. 13. Offence of cheating, under Section 420 of the Indian Penal Code, can also not be said to be made out. There is a procedure for issuance of Scheduled Caste and Scheduled Tribe certificates. The procedure is prescribed in Hand Book on Personnel Matters, Volume II, Chapter 20. …7… 14. In the present case application, Ex. PW-9/A, was submitted to Tehsildar Nichar by a brother of the Revision Petitioner. Tehsildar marked that application, for enquiry, to the Gram Panchayat. Pradhan of the Panchayat, vide certificate Ex. PW-5/A reported that the ancestors of the petitioner were residents of village Chaura, Tehsil Nichar, District Kinnaur and that they had migrated to village Kandhar of Tehsil Rampur, District Shimla, in remote past. It was on the basis of the said certificate that Bhagat Ram, co-accused of the petitioner, issued certificate Ex. PW-9/B. According to the procedure laid down in Chapter 20 of the aforesaid Hand Book on Personnel Matters, Volume II, a claim by a person that he belongs to a Scheduled Tribe or a Scheduled Caste is subject to verification and if on verification such claim is found to be false his services can be terminated and if benefit of promotion is given to him that can be withdrawn. Reference in this behalf may be made to Para-20.4.4 of Chapter 20 of the aforesaid Hand Book. 15. Evidence on record shows that enquiry by the employer of the Revision Petitioner as to the genuineness of the claim had been pending, when the trial was going on. Reference in this behalf may be made to the statement of PW-13 Jagdish Ram. That means, it was not certain whether the certificate issued in favour of the Revision Petitioner, i.e. Ex. PW-9/B, was genuine or fake. If that is …8… so, even the charge of cheating cannot be said to have been made out. For the foregoing reasons, the present Revision Petition is allowed and the conviction and sentence of the Revision Petitioner for all the three offences, under Sections 471, 474 and 420 of the Indian Penal Code, are set aside. Conviction and sentences of petitioner’s co-accused Bhagat Ram, for the aforesaid offences, are also set aside. August 20, 2009(sd) ( Surjit Singh ), J