IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 375 of 2002. Date of Decision : 07.09.2011 State of Himachal Pradesh ….Appellant. Versus. Hari Chand & Another. ….Respondents. Coram: Hon’ble Mr. Justice R. B. Misra, Judge Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. For the Appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. A.G. For the respondents : Ms. Ambika Kotwal, Advocate, for respondent No.1. Mr. Kanwar Virender Singh, Advocate, for respondent No.2. Per Justice Dev Darshan Sud, J (Oral). The State has challenged the judgment of acquittal passed by the learned Addl. Chief Judicial Magistrate, Dehra acquitting the accused/respondents for offences punishable under Sections 170, 420, 120-B, 467, 468 and 471 of the Indian Penal Code. 2. The prosecution case in brief is that on 18.9.2010 ASI Tara Chand of Police Station Dehra was on patrolling duty near HRTC Workshop at Dehra where Tara Chand, Complainant informed him that he was posted as Inspector in Flying Squad at Dharamshala and Avtar Singh (PW1) and Amarnath (PW6) also Whether reporters of the Local papers are allowed to see the judgment? 2 posted as Inspectors in the same wing of the HRTC. On the previous day when he was touring in his official vehicle No. HIK- 672 at around 10 a.m. he reached Jawalamukhi in connection with traffic checking duty, when Hari Chand (PW12), Inspector HRTC also joined the flying squad. They received information that one person was impersonating himself as Inspector and had proceeded to Dehara in bus No. HP-38-2412. On inquiry made from bus conductor Sunder Lal about the fact as to whether there was some person impersonating himself as Inspector, he pointed towards accused/respondent Hari Chand. They accosted him and he disclosed his name as Om Prakash son of Shri Dayalu Ram, resident of Village Ahaju but there was no identity with him. They then took him to Shri S.R. Dogra, Regional Manager, Dehra and on checking the papers which he was carrying, they found that his name was Hari Chand and not Om Prakash. Regional Manager questioned this person and he confessed before him that he regularly holds out that he is an Inspector and checks buses. Thereupon the Regional Manager sent the complainant to the police to lodge a report against the accused and when he was proceeding to the police station, he met ASI Tara Chand to whom he narrated the entire episode, which was made the basis for registering the FIR No. 54/90. 3. During the course of investigation of the case, the accused was arrested on 18.9.1990 and during his personal search documents purporting to be forged and consisting of appointment order of Shri Chhotu Ram and Shri Milkhi Ram as 3 conductors, matriculation certificate of Shri Guri Singh and other incriminating articles were recovered from his person. On the basis of these appointment orders purported to be forged and alleged to be prepared by accused Hari Chand, Milkhi Ram joined as conductor in HRTC Dehra on 29.8.1990. He was also arrested in the case on 20.9.1990. 4. Learned trial Court formulated five points for adjudication. The first four points recorded are :- (a) as to whether the accused Hari Chand had impersonated himself as Inspector and pursuant to that had performed duties in such capacity (b) whether the prosecution had proved that he had hatched criminal conspiracy with accused Milkhi Ram for preparing re-appointment order as conductor (c) whether the prosecution has proved on record that Ex. PW5/A letter dated 4.8.1990 prepared by accused Hari Chand purporting to be the forged appointment letter of Hari Chand, and Ex. P16 appointment letter of Chottu Ram and Matriculation certificate, Ex.P15 of Guri Singh were forged and fabricated and (d) whether the prosecution has proved that accused/respondent Hari Chand entered into conspiracy for the purpose of preparing these forged documents? 5. On the question of criminality attributed under Section 170, the learned trial Court adverted to the evidence of Avtar Singh (PW1), Milap Chand (PW2),and Amar Nath (PW6). Learned trial Court notices that these witnesses were posted as Inspectors in the HRTC Flying Squad at the time. Their 4 evidence is that on 18.9.1990 while they were on traffic checking duty, they came to know about the episode of a person holding himself out to be an Inspector though in fact it was a fictitious representation. Then they stated that they supposedly went to check buses at Dehra bus-stand where accused Hari Chand was caught and confessed before them. That per se would not have been sufficient for constituting the essential ingredients of an offence against the accused under Section 170 of the Indian Penal Code. The learned trial Court has rightly held that it is hearsay evidence as these persons have not stated that (a) the accused was caught red handed while checking any bus (b) no evidence was adduced by the prosecution or the name of any conductor or passenger who had informed these witnesses that accused was in fact checking buses/passengers (c) no witness had been produced who had actually seen this accused performing checking duty. 6. In Biswanath Mukherjee vs. The State, AIR 1967 Calcutta 602, a Division Bench of the Calcutta High Court considered the necessary ingredients to be proved before a person can be convicted of offence under Section 170 IPC:- “3. ……………………………………………. Section 170 Indian Penal Code reads as follows: Whoever pretends to hold particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office and in 5 such assumed character does or attempts to do any act under colour of such office, shall be punished with imprisonment of either description, for a term which may extend to two years, or with fine or with both. The prosecution, therefore, is to prove the following points. (1) that the accused falsely pretended to be or personated to be a public servant, (2) that he did so knowingly, and (3) that when assuming such character he did or attempted to do something under colour of such office…..” (p.602) In that case, prosecution case was that the petitioner went on board a Japanese vessel S.S. Ganges Maru and represented himself as a Customs Officer and wanted presents from the Purser and the Master of the vessel. He received a ball-point pencil from the Purser and a packet of handkerchiefs from the Master. The Court on consideration of the facts concludes:- “4. The demand or receipt of presents cannot be said to be under colour of office, as the act has no relation to the duties of the Customs Officer and the ingredients for an offence under S. 170 Indian Penal Code are not therefore satisfied. We are, therefore, of the view that the prosecution failed to prove that the act was done under colour of the pretended office and no offence under S. 170 Indian Penal Code was therefore, committed”. 7. The Court also noticed and considered the decision of Allahabad High Court in Emperor Vs. Aziz-Ud-Din, (1905) ILR 6 27 All 294, holding that it is not necessary that the act done or attempted to be done should be such an act as might legally be done by the public servant impersonated. To similar effect is the decision of Punjab and Haryana High Court in Ajitinder Singh vs. State of Punjab and others, 2000 Cri. L. J. 1827. “13. As already observed, there is nothing on records to show that the 5th respondent has done any act under the colour of the office. Mere attending some meetings and addressing general public does not amount to act under the colour of the office. If a person who has been designated as Chairman discusses with somebody like the Sub- Divisional Magistrate or Deputy Commissioner and other people, it does not amount to dealing with the activity of the Marketing Board or with regard to participating in the activity of the Marketing Board. In my view, it does not amount to acting under the Colour of the office. May be, having been appointed as Chairman of the Punjab State Agricultural Marketing Board, the 5tyh respondent wanted to acquaint himself with the functioning of the Board and also to streamline the functioning after assumption of the office. But it does not amount to offence as envisaged under Section 170, I.P.C. Mere assumption of a character without any attempt to commit any official act is not sufficient to attract Section 170, I.P.C. I am, therefore, of the opinion that Section 170 is not attracted”. (P-1829) 7 8. We find that the ingredients of the offence having not been established by evidence. Merely stating that the accused is Inspector is not sufficient or of any help to the prosecution to establish that offence under Section 170, IPC has been committed. Surely, it is for the prosecution to rely upon the best evidence and not merely to rely on hearsay evidence. 9. Taking up three points, points No.2, 3 and 4, the learned trial Court holds that there is no evidence on record that Ex.PW5/A has been forged by Hari Chand in connivance/conspiracy with Milkhi Ram. There was also no evidence to show that matriculation certificate Ex. P15 of Guri Singh and re-appointment letter Ex. P16 were also prepared by Hari Chand accused/respondent. On the question of criminal conspiracy there was no evidence that the accused acted and consulted in order to forged these documents and that Milkhi Ram used Ex. PW 5/A knowing it to be forged. 10. We do not find that there is any perversity in the judgment of the learned trial Court. Therefore, the appeal is dismissed. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra), Judge. (Dev Darshan Sud), Judge. 7th September, 2011. (jai)