Rajendra Singh Sethia Vs The State and Others

Sankari Prasad Das Ghosh, J.@mdashThis revisional application is directed against an order passed by the learned Metropolitan Magistrate, 11th Court Calcutta, on 2-4-87 in G. R. Case No. 1202 of 1985, rejecting an application filed by the petitioner, Rajendra Singh Sethia, on 3-1-86 u/s 216 of the Code of Criminal Procedure for dropping unsustainable charges framed in the case.

2. The petitioner was facing trial as an accused in a case pending in the court of the Chief Metropolitan Magistrate, Delhi. He was arrested in connection with that case on 1-3-85 at Maurya Sheraton Hotel, New Delhi. On 2-3-85, there was a search in room No. 1589 in that hotel. As a result of the search various documents, including a passport bearing No. W 900509 dated 13-2-85 issued by the Public Relations Officer, Regional Passport and Emigration Officer, Calcutta, were seized by the Police. The G. R. Case No. 1202 of 1985 centres around this passport.

3. The prosecution case, in a nutshell, is that the petitioner is an Indian National based in London. He was the Managing Director of M/s. Esal Commodities Limited, London. He has a valid passport, bearing No. U 716884 dated 17-2-84 issued in his name by the Consulate General of India, New York, Even then, he signed another passport application form as R. K. Dugar, for obtaining another passport. It is alleged that for obtaining the impugned passport, bearing No. W 900509 dated 13-2-85, the petitioner impersonated himself as R. K. Dugar and committed various acts in conspiracy with two other accused persons in that G. R. Case No. 1202 of 1985. The petitioner happens to be the accused No. 1 in that G. R. Case No. 1202 of 1985. The accused No. 2 in that case is Bhagat Ram Thapar. The accused No. 3 in that case is Chiranji Lal Sharma. The F.I.R. in that case, after seizure of various documents, including the impugned passport was under Sections 419/420/468, I.P.C. The charge-sheet was submitted in the case on 5-4-85. On 4-5-85, charges were framed in the case against all the three accused u/s 120B read with Sections 420/419/468/471, I.P.C. and Section 12(1)(b) of the Passports Act, 1967. Apart from this charge of conspiracy, there were separate charges against the three accused of the case, the separate charges against the petitioner being u/s 12(1)(b) of the Passports Act and Sections 419/420/468/471, I.P.C. separate charge against the accused No. 2, B.R. Thapar, being under Sections 471/468, I.P.C. and Section 12(2) of the Passports Act and the separate charge against the accused No. 3. C. L. Sharma, being u/s 12(2) of the Passports Act, 1967 (hereinafter referred to as the "Act" for the sake of convenience). After framing of these charges against the petitioner and the other two accused persons of this case, these three accused persons filed criminal revisional applications separately before this Court against framing of the charges against them in the case. The petitioner filed criminal revision No. 1564 of 1985 against the order dated 4-9-85, framing the charges against the accused persons in the case. This revisional application was withdrawn by the petitioner on 5-12-85 with the result that the revisional application was dismissed for non-prosecution. Similarly, criminal revisions Nos. 1565 of 1985 and 1507 of 1985, filed by the accused Nos. 2 and 3 of the case in this Court, were dismissed for non-prosecution on 5-12-85. T hereafter, three witnesses were examined for the prosecution. They were Arup Singh(P.W. 1), R. K. Sharma (P.W. 2) and Bhupendra Kumar (P.W. 3). On 3-1-86, the petitioner filed a petition in the court below u/s 216, Cr.P.C for dropping out unsustainable charges on the ground that on the basis of the evidence adduced by the prosecution charges should be amended by dropping charges under Sections 419/420/468/471, I.P.C. It was stated in that petition that the petitioner wanted to plead guilty to the charge under the Act, and such other offence as, in law, could be made out against him. He admitted in that petition that the application for Passport contained some wrong particulars. After the filing of this petition on 3-1-86 u/s 216, Cr. P.C. a synopsis of submissions on behalf of the petitioner was filed in the court below on 15-2-86, followed by reply by the prosecution on 30-4-86. Subsequently, the petitioner u/s 216, Cr. P.C. was rejected by the learned Metropolitan Magistrate, 11th Court, Calcutta (to whom the case was subsequently transferred on 18-6-86 by the learned Chief Metropolitan Magistrate, Calcutta) on 2-4-87. Being aggrieved, the present revisional application has been filed.

4. Mr. Sen, the learned Counsel for the petitioner, has challenged the order of the learned Magistrate rejecting the application u/s 216, Cr. P.C. on several grounds.

5. His first contention is that the words, "alter or add to any charge" in Section 216, Cr. P.C. are sufficiently comprehensive for dropping of unsustainable charges. His second contention is that the charges under Sections 419 and 420, I.P.C. cannot stand when the Act is a special Act, to which the general law must yield His third contention is that the charges under Sections 468 and 471, I.P.C, cannot stand, as there is no forgery in the present case. His last contention is that the trial of the petitioner | on the charges under Sections 419, 420, 468 and 471, I.P.C. is subject to constitutional challenge.

6. As for the first contention, Mr. Sen referred us to several case laws, such as Kapildeo Upadhya Vs. State, and Harihar Chakravarty Vs. The State of West Bengal, . We have carefully considered these case laws and are unable to agree with Mr. Sen that on the basis of these case laws the charges framed against the petitioner, apart from the charge u/s 12(l)(b) of the Act, should be dropped. A erroneous and improper charge may be corrected u/s 216, Cr. P.C. by reframing it properly or by adding to it or altering it for an offence provable by the evidence. This power to add to or alter a charge is comprehensive enough for remedying defects, whether they arise out of the framing of a charge or the non-framing of a charge and whether they are discovered at the inception of the trial or at subsequent Stage of the trial, prior to pronouncement of judgment The State Vs. Baijnath and Others, . This power to add to or alter a charge cannot, however, We exercised unless there are evidences on record to support the addition or alteration of charge. There are fifty prosecution witnesses in the case. Only three prosecution witnesses have been examined so far in the case. These P.Ws. 1, 2 and 3 have spoken only about search of room No. 1589 of Maurya Sheraton Hotel, New Delhi, on 2-3-85, leading to recovery of various documents, including the impugned passport. In the absence of evidence of the other prosecution witnesses yet to be examined by the prosecution, this is not at all A proper stage for addition or alteration of any of the charges framed against the petitioner. The petition u/s 216 Cr. P.C. is premature inasmuch as, on the basis of the evidences of these three P.Ws., it cannot be at all stated that any of the charges framed against the petitioner should be altered! or withdrawn.

7. To discuss now the cases relied on by Mr. Sen the case of Phoenix Mills v. C.B.I. (1973) 72 Bom LR 87, was under the Imports and Exports (Control) Act, 1947. The accused person in that case was charge-sheeted u/s 120B, I.P.C. read with Section 5 of that Act for breach of condition of licence issued under that Act for not disposing of the imported goods. There was no complaint in that case u/s 6 of that Act. It was held in that case that the mandatory provisions of Section 6 of that Act could not be permitted to be avoided or circumvented by seeking to prosecute the accused merely for an offence of conspiracy u/s 120-B, I.P.C. read with Section 5 of that Act as, in the absence of a complaint in writing u/s 6 of that Act, cognizance for an offence u/s 5 of that Act was barred. This case cannot help the petitioner when it is not the case of the petitioner that the petitioner was being tried u/s 12(l)(b) of the Act without any previous sanction u/s 15 of the Act.

8. In re : Subbaratnam AIR 1949 Mad 663 : (50 Cri LJ 950), it was held that the Sessions Judge could alter charge framed by the committing court at any stage before verdict by the Jury or opinion by the Assessors was given. It was further held in that case that a Sessions Judge was not bound by the charges framed by the committing Court and that he had ample power to revise or alter them not only at the commencement of the trial u/s 226 of the old Code of Criminal Procedure, 1898 (referred to hereinafter as the "Old Code"), but also u/s 227 of the old Code at any stage of the trial before verdict of the Jury was returned or the opinion of the Assessors was recorded. Section 226 of the old Code has been deleted in the new Cr. P.C. 1973. Be that as it may, Sections 227 to 230 of the old Code, corresponding to Section 216 of the new Cr. P.C. have given ample power to revise or alter charges, provided there are materials on record to support the revision or addition or alteration of the charges. As yet, there is no material on record to revise or alter the charges, when the remaining prosecution witnesses have net yet been examined.

9. The case of Kapildeo Upadhya Vs. State, is an authority for the proposition that addition or alteration of a charge can be made more than once. This case has also no application as the charges framed by the learned Magistrate have not previously been altered.

10. In the case of Suren Banerjee v. State (1965) 69 Cal WN 741, it was held that u/s 227 of the old Code the Court had power to alter the charge at any time before the delivery of judgment. The point for consideration in that case was whether de novo trial was justified after amendment of charge by striking one of two charges framed alternatively in that case after examination of all P.Ws. and the examination of the accused u/s 342 of the old Code (corresponding to Section 313 of the new Cr. P.C.). This case of Suren Banerjee (supra) will be of no help to the petitioner inasmuch as the other P.Ws. have not yet been examined.

11. In the case of Dwarka Lal v. Mahadeo Rai (1890) ILR 12 All 551 relied on much by Mr. Sen, there was commitment of an accused to the Court of Session for trial u/s 395, I.P.C. when the trial commenced in the Court of Session, the learned Sessions Judge on his own motion added additional charges under Sections 147, 149 and 452, I.P.C. Prior to the conclusion of the trial, the learned Judge withdrew the charges which he had himself added and tried the accused persons on the original charge u/s 395, I.P.C. only. Finally, the accused persons were acquitted of the original charge. The High Court was moved in that case to set aside the proceeding of the Court below and for trial of the accused persons on the charges framed by the learned Judge himself. The withdrawal of the additional charges framed by the learned Sessions Judge was the subject-matter of comment before the High Court. It was in this context, that the High Court observed in that case that the word, "alter", in Section 227 of the old Code must be taken to include withdrawal. On the basis of this case of Dwarka Lal (supra), the charges framed in this case cannot be withdrawn, as 47 prosecution witnesses are yet to be examined in the case.

12. The present case is a warrant case instituted on police report, the procedure for trial of such warrant cases instituted on police report is laid down in Sections 238 to 243 and Section 248, Cr. P.C. Once the charges have been framed against the petitioner and the other two accused persons on 4-9-85, the Magistrate s to fix a date for examination of witnesses. u/s 242(3), Cr.P.C the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. There is no provision in the Code of Criminal Procedure that without taking all such evidence as may be produced by the prosecution in a warrant case instituted on police report, the learned Magistrate can withdraw most of the charges framed against an accused, after framing these charges u/s 240, Cr. P.C. after being satisfied that there was ground for presuming that the accused lad committed those offences. There is no provision for discharge of an accused in a warrant case instituted on police report after framing of charges against him in the case. State of Kerala Vs. Sebastian, .

13. In the case of Ratilal Bhanji Mithani Vs. State of Maharashtra and Others, , it has been held that once a charge is framed in a warrant case instituted either on a complaint or a police report, the Magistrate has no power under the Code to discharge an accused. It has further been held in the case of Ratilal (supra) that once a charge has been framed in a warrant case, the Magistrate can either acquit or convict the accused unless he decides to proceed u/s 349 or 562 of the old Code, corresponding to Sections 325 and 360 of the new Code of Criminal Procedure. Mr. Sen has tried to distinguish this case of Ratilal (supra) from the facts of the present case by contending that the prayer of the petitioner is for dropping the charges and not for discharge. It is no doubt true that the petitioner has not prayed for discharge, by filing the petition u/s 216, Cr. P.C. Even then, the effect of an order of dropping of charges will be acquittal of the petitioner of these charges. This cannot be done unless all the prosecution witnesses are examined,

14. The last case referred to by Mr. Sen relates to exercise of power in revision to give direction for alteration of charge in a criminal case. In the case of Harihar Chakravarty Vs. The State of West Bengal, , it was held that in revision a direction to alter the charge so as to include an offence for which an accused was not originally charged, could be given only if the trial Court itself could take action in the matter u/s 227 of the old Code. There is no question of discretion for inclusion of any additional charge against the petitioner in this revisional application. As such, the case of Harihar (supra) cannot also help the petitioner.

15. In short, unless all the prosecution witnesses are examined in the case, it cannot be stated, on the basis of the evidences of P. Ws. 1, 2 and 3 examined in the case so far, that any of the charges framed against the petitioner is to be altered. It is no doubt true that the charge u/s 419, I.P.C. is somewhat defective. In order to constitute an offence of cheating by personation, there must be cheating in addition to personation and the personation must be for the purpose of cheating. The charge u/s 419, I.P.C. framed in the case does not go to show that the personation was for the purpose of cheating. This is a matter which the learned Magistrate will surely look into and will take necessary action. The charge u/s 419, I.P.C. cannot, however, be dropped on this score as most of the prosecution witnesses are yet to be examined in the case.

16. Though this is sufficient to dispose of the revisional application, we are to discuss, in a nutshell, the other contentions by Mr. Sen., Mr. Sen has contended that when offences relating to passport and penalties are, mentioned in the Act (The Passports Act, 1967), which is a special Act, the provisions of the general Act viz. Indian Penal Code, relating to false particulars mentioned in the application for passport, cannot be the subject-matter for any offence u/s 419 or 420, I.P.C. It is a well settled rule of construction that if a later statute describes an offence created by a previous one and imposes a different punishment, or varies the procedure, the earlier statute is repealed by the later statute Smith v. Benabo (1937) 1 All ER 523 . If a later statute again prescribes an offence created by a former statute, and affixes a different punishment to it, varying the procedure etc. and giving the right of an appeal, where there was no such right previously, the prosecutor must proceed for the offence under the later statute Michell v. Brown (1859) 120 ER 909 . If a statute deals with a particular class of offences, and a subsequent Act is passed, which deals with precisely the same offences, and a different punishment is imposed by the later Act, the Legislature will be deemed to have declared that the new Act will be substituted for the earlier Act Regina v. Youle (1861) 158 ER 311 . This rule of repeal of earlier statute by implication is subject to limitations contained in Article 20(1) of the Constitution against ex post facto law providing for a greater punishment and has no application where the offence described in the later Act is not the same as in the earlier Act, i.e., when the essential ingredients of the two offences are different T. Barai Vs. Henry Ah Hoe and Another, . When the punishment or penalty is altered in degree but not in kind, the later punishment would '' be considered as superseding the earlier one Zaverbhai Amaidas Vs. The State of Bombay, . The contention of Mr. Sen on the basis of these case laws, is that the general provisions in Sections 419 and 420, I.P.C. must yield to special provision in Section 12 of the Act. He has referred, in this connection, to the case of the The State Vs. Gurcharan Singh, . It was held in the case of Gurcharan Singh (supra) that as long as Section 5 of the Prevention of Corruption Act, 1947 remained in force, the provisions of Section 409, I.P.C., so far as they concerned offences by public servants, were pro tanto repealed by Section 5(l)(c) of the Prevention of Corruption Act, 1947. This decision in the case of Gurcharan Singh was not, however, considered to be good law by this Court in the case of Amarendra Nath Roy Vs. The State, , after amendment of that Act in 1952. To support his contention that there is repeal by implication of Sections 419 and 420, I.P.C. in view of the special provisions for offences relating to passport and punishment thereof in the Act itself, Mr. Sen also referred us to the case of The Collector of Bombay Vs. Kamalavahooji Maharaj, . It was held in that case that when there was a conflict between a special Act and a general Act, the provisions of the special Act will prevail. This decision was on the basis of the provisions in Section 4 of the Code of Civil Procedure, 1908 to the effect that in the absence of any specific provision to the contrary, nothing in the CPC would be deemed to limit or otherwise affect any special or local law in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. In the case of Kamala Vahooji (supra), a distinction was made between diversity and repugnancy and it was held that Section 168A of the Bengal Tenancy Act, 1885 was not in conflict with or repugnant to Sections 51 and 60 of the Code of Civil Procedure. In the present case, we are not concerned with any question of repugnancy or conflict between the provisions of the Act relating to passport and the offences under the Indian Penal Code. As held by the Supreme Court in the case of Baliah v. Rangachari AIR 1969 SC 710, before coming to the conclusion that there is repeal by implication, the Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together and the repeal of the express prior enactment must flow from necessary implication of the language of the later enactment. In the case of Baliah (supra), one of the questions involved was whether there was implied repeal of Section 177, I.P.C. in view of Section 52 of the Income Tax Act, 1921. It was held in that case, involving false statement in verification of Income Tax Return, that a person could be prosecuted both u/s 177, I.P.C. and Section 52 of the Income Tax Act, 1922. The provisions of Section 26 of General Clauses Act, 1897, were discussed in that case and it was held that Section 26 of the General Clauses Act only barred punishment of offender twice for the same offence and not trial or conviction under both enactments. In another case of Chandrika Sao v. State of Bihar 1967 Cri LJ 261 : AIR 1967 SC 170, it was held that a person could be prosecuted for either or both of the offences u/s 16(1)(h) of the Bihar Sales Tax Act, 1947 and Section 353, I.P.C. at the discretion of the prosecution. It was decided in that case that in choosing to prosecute an accused for a graver offence under the general law, the prosecution could not be regarded as having acted colourably and that if the prosecution were to be so restricted, graver offences would go unpunished. In the present case, there can be no inference of implied repeal of Sections 419 and 420, I.P.C. by Section 12 of the Act as these sections of Penal Code and Section 12 of the Act, can stand together, when the ingredients for the offences u/s 12 of the Act, and for offences under Sections 419 and 420, I.P.C. are not the same. We are, therefore, unable to agree with the contention of Mr. Sen that the charges under Sections 419 and 420, I.P.C. should be dropped as these charges under the general law must yield to the charge u/s 12(1)(b) of the Act, which is a special Act.

17. A writing is not a forgery when it merely contains statements which are false. To be a forgery, a document must not only tell a lie, but must also tell a lie about itself. As such, Mr. Sen has contended that even assuming for the sake of argument that the passport authority was deceived at the time of issuing the passport to the petitioner, the passport was made or executed by the authority by which it purported to be executed or issued. The passport was issued for the person shown in the photograph affixed to the passport, though that photograph was not of R. K. Dugar. It was issued to the applicant who described himself as Dugar. Mr. Sen has further contended that the application for passport was the act of the petitioner and the petitioner left no one in doubt that he was calling himself as Dugar and as such, there would be no offence u/s 468 or 471, I.P.C. We are unable to accept this contention as the prosecution case is that in the application for grant of passport in accordance with the form mentioned in Schedule III read with Rule 5 of the Passports Rules, 1967, there is a column, being column No. 3 in Item C about "Aliases, if any". It is contended by the prosecution in their reply filed in the court below on 30-4-86, that against that column relating to "Aliases, if any", the petitioner had not mentioned any name and had instead shown his father''s name as Late Shanti Lal Dugar instead of Sohan Lal Sethia and had also given false address and other particulars. According to the prosecution, the petitioner had not only submitted false particulars in the application for passport but had also signed in the assumed name as Raj Kumar Dugar, knowing fully well that he was not R.K. Dugar and that he had no authority to sign as R.K. Dugar. It is further the prosecution case that the signing of the application for passport by the petitioner in a false name was both fraudulent and dishonest, the prosecution is to prove its case by adducing evidence. In the absence of evidence yet to be adduced in the case, it cannot be stated at this stage that no offence u/s 468 or 471, I.P.C. has been committed by the petitioner simply because the petitioner had used an alias name.

18. Mr. Sen referred us to the case of Dr. Vimla Vs. Delhi Administration, and contended that the offence u/s 468, I.P.C. could not be stated to be made out as word, "defraud" involved two elements, deceit and injury to person deceived. It is not necessary for us at this stage to discuss as to whether, on the basis of this decision by the Supreme Court, any offence u/s 468, I.P.C. can be stated to have been committed by the petitioner as prosecution is yet to examine most of the witnesses.

19. Where there are two procedures for determination and enforcement of a liability, be it civil or criminal or revenue, one of which is substantially more drastic and prejudicial than the other, and they operate in the same field, without any guiding policy or principle available from the legislation as to when one or the other procedure shall be followed, the law providing for the more drastic and prejudicial procedure would be liable to be condemned as discriminatory or void under Article 14 of the Constitution On the basis of this decision of the Supreme Court in the case of Maganlal Chhaganlal (P) Ltd. Vs. Municipal Corporation of Greater Bombay and Others, , Mr. Sen has contended that the procedure for trial of the petitioner for the offences under Sections 419/420/468/471, I.P.C. should be condemned We are unable to accept this contention. The Act makes special provisions regarding particulars to be given in an application for passport. In view of the decision of the Supreme Court in the case of T.S. Baliah Vs. T.S. Rengachari, , already referred to, there is no implied repeal of Section 419 or 420 or 468 or 471, I.P.C. in view of the enactment of Section 12 of the Act. The ingredients for the offences under these sections of the Indian Penal Code and the offence u/s 12 of the Act are not the same. In the Act, there is no separate procedure for trial of offences under the Act. In these circumstances, we are unable to accept the contention that the procedure for trial of the petitioner under Sections 419/420/468/ 171, I.P.C. is more drastic and should be condemned.

20. In short, the learned Magistrate has prima facie formed an opinion in the case that the petitioner has committed the offences under Sections 419/420/468/471, I.P.C. or the offence of criminal conspiracy u/s 120B, I.P.C., apart from an offence under S- 12(1)(b) of the Act and has framed charges accordingly. The charges cannot be dropped, when most of the prosecution witnesses are yet to be examined The right to prove the case against the petitioner cannot be denied to the prosecution, in spite of the mandatory provisions in Section 242(3), Cr. P.C. State of U.P. Vs. Man Mohan and Others, , Pratibha Rani Vs. Suraj Kumar and Another, . No prejudice has been caused to the petitioner by framing the charges on the basis of the materials to be considered u/s 240, Cr. P.C.

21. The revisional application is, accordingly, rejected.

L.M. Ghosh, J.

22. I agree.