G.S. Sandhawalia, J
The present judgment shall dispose of three petitions i.e. CRM-M-39202-2018, CRM-M-54078-2018 and CRM-M-16754-2019, since the same are
arise out of same set of proceedings.
CRM-M-39202-2018
2. The present petition has been filed by Sukhbir Kataria, who is the 6th accused in a private complaint bearing No.16 dated 10.01.2013 (Annexure P-
1) filed by the respondent under Section 420, 467, 468, 471, 120-B of the Indian Penal Code (IPC) read with Section 31 of Representation of Peoples
Act, 1950. Challenge has been raised under Section 482 of the Code of Criminal Procedure (Cr.P.C) for quashing of the said complaint, in which the
petitioner has been summoned vide order dated 23.03.2013 (Annexure P-2) by the Judicial Magistrate Ist Class, Gurgaon ( for short 'JMIC'), for the
offences under IPC only, on the ground of being abuse of process of Court. Challenge has also been raised to the orders dated 07.04.2018 (Annexure
P-4), wherein the application of the petitioner for dismissal of the complaint had been rejected by the JMIC and the order dated 06.08.2018 (Annexure
P-6), wherein the revision petition against the said order was rejected by the Additional Sessions Judge, Gurgaon.
CRM-M-54078-2018
3. Petitioner-Devinder Singh Kadiyan, retired Assistant Food and Supply Officer, who is accused No.7 in the same complaint, also challenges the
same set of orders, primarily on the ground that it is a malafide set of criminal proceedings to take political revenge from Sukhbir Kataria, who was
MLA & Minister in Haryana Government as an independent candidate and that the complainant claimed himself to be the General Secretary of the
Matdata Jagrook Manch, Gurgaon (for short 'Manch'), which is not a registered Society under the Haryana Registration and Regulation of Societies
Act, 2012. The complainant having a criminal background and had never any authority in law as such to initiate the proceedings. Apart from that
admissibility of the evidence has also been questioned, on the basis of which the summoning order had been passed. Counsel has also placed reliance
upon a order dated 18.09.2019 (Annexure P-11) in Crl. Complaint No.92 dated 21.02.2017 filed by the complainant in similar circumstances, in which
the benefit of Section 197 Cr.P.C., was given to the petitioner and he was not summoned by the JMIC.
CRM-M-16754-2019
4. The present petition has been filed under Section 195 and 340 Cr.P.C., read with Section 482 Cr.P.C., by the complainant-Om Parkash against the
accused No.6-Sukhbir Kataria, on the ground that a false declaration has been made supported by an affidavit, in support of the CRM-M-39202-2018,
to the effect that the said accused was not in knowledge of the summoning order dated 23.03.2013 and he was never served in the said proceedings.
It is submitted that an anticipatory bail application dated 09.04.2013 had been filed in which an order dated
11. 04.2013 had been passsed in favour of the said accused and, therefore, it did not lie in his mouth to say that he was not aware of the said order. It
is, thus, submitted that the proceedings have been stayed at a belated point of time on 27.11.2018 when the petitioner approached this Court in the
year 2018 and which was not liable to be stayed on account of delay, since the accused as such had been appearing in the Court from 2013 to 2018.
5. In the response filed, the plea is taken that there has been inadvertent and immaterial inaccuracy in the pleadings and the whole petition has to be
read as a whole and not piecemeal. The same would not justify prosecution and should not be instituted in a matter of course. There is no deliberate
falsehood as the petition had been filed after the order dated 07.04.2018 passed by the Trial Court, had been upheld vide the impugned order dated
06.08.2018 by the Additional Sessions Judge, which is also subject matter of challenge. It was submitted that the complainant had filed 14 similar
complaints having similar allegations at Gurugram and if an error in the pleadings may have crept in, on account of some confusion in narrating the
facts to the counsel for the petitioner it would not be a ground to initiate proceedings. It is submitted that interim order dated 27.11.2018 was passed by
this Court while noticing arguments of the counsel for the petitioner and there was no question of misleading and resultantly dismissal of the petition
was prayed for.
Facts and Background
6. The present litigation has a longish background and history, which necessarily has to be taken into consideration for proper adjudication of the
factual aspect.
7. Sukhbir Kataria the petitioner in the first case is stated to be a politically active person who has won elections from the level of Sarpanch of the
village to the election for the Member of the Legislative Assembly from his Constituency. The election of the petitioner was, thus, challenged in the
year 2009 by one Umesh Aggarwal by invoking Section 80 to 83 read with 100 of Representation of Peoples Act, 1951 and for setting aside of the
same from 77-Gurgaon Assembly Constituency, vide Election Petition No.9 dated 05.12.2009 (Annexure P-7). The petitioner-Sukhbir Kataria had
been elected by a margin 2140 votes against votes secured by Dharambir of Indian National Congress who had secured 38873 votes. Umesh
Aggarwal, the petitioner in the election petition had secured 23864 votes. The election had been challenged on the ground that 3865 persons had been
enrolled as voters twice and they had cast two votes at both places and, therefore, the votes cast by them were liable to be excluded. Allegations
were made that the exercise of making votes was knowingly, deliberately, willingly, in connivance with his relatives, friends and supporters done and
140 relatives, friends and supporters were enrolled as voters more than once in the 77-Gurgaon Assembly Constituency. List of the same was given in
the election petition and, thus, on the ground that about 32875 voters were void and by the improper reception of these votes, the said returned
candidate had been elected, the election had been challenged.
8. It is a matter of record that election petition was disposed of as infructuous on 20.11.2014 (Annexure P-14). CWP No.7780 of 2011 'Matdata
Jagrooka Manch and others Vs. State of Haryana and others' (Annexure P-8) had also been filed by the Manch of which the complainant/respondent
is a office bearer, in which the complainant herein was petitioner No.3 alongwith one Lt. Col. (retired) S.S. Oberoi, who was arrayed as petitioner
No.4. Challenge in the said writ petition was to enquire into non-availability and or misplacement of some of the protected election records of the year
2006 to 2009 of the Constituency and destruction of the records from the year 2004-2005, which was stated to be in violation of the Registration of
Electors Rules, 1960. The writ petition was disposed of on 03.05.2011 (Annexure P-8) by the Division Bench that it was within the domain of the
Chief Election Commission of India and the said authority would take appropriate action, if found necessary. Lt. Col. (Retired) S.S. Oberoi, had taken
the matter to the Apex Court and SLP bearing No.CC 18501-18502 of 2011 was dismissed on 16.12.2011 (Annexure P-9).
9. Not being satisfied with the litigation initiated, the complainant Om Parkash had approached SHO, Police Station, Gurgaon, vide complaint dated
11.07.2012, copy of which was also sent to DGP, Harayana, Commissioner of Police, Gurgaon and Deputy Commissioner, Gurgaon. The same was
regarding 32000 bogus votes, which were stated to be used in the October, 2009 elections at Gurgaon. Specific allegations were made against the
petitioner and his family members who were co-accused in the complaint that they submitted Form No.6 to the Election Office, on the basis of a ration
card, which was not not issued by the Food and Supplies Department. An electricity bill had also been mentioned, which related to one Sant Ram and
who had the same name, namely Sant Ram as of the co-accused and, therefore, action was sought against Shri Sukhbir Kataria of using forged
documents in connivance with the co-accused for the purpose of using the same in the election to the State Assembly. Thereafter, the complainant
had approached this Court by filing CRM-M-25120-2012 on 16.08.2012, appending the said complaint and seeking directions against the respondents,
who were State of Haryana through its Secretary, Department of Home, Commissioner of Police, Gurgaon and SHO, Police Station, Police City,
Gurgaon, for registration of a criminal case against the accused named in the complaint dated 11.07.2012. Specific averments were made that a ration
card No.729664 in favour of Sant Ram son of Prahalad had been found to be a forged one and had never been issued by the Food and Supplies
Department, as per the information supplied which was appended showing that the ration card was never registered in the name of Sant Ram son of
Prahalad Singh, resident of House No.209/21, Gali No.8, Raj Nagar, Gurgaon. Reliance had been placed upon the information supplied under Right to
Information Act, 2005 dated 07.05.2012, wherein the Assistant Food Supply Officer had submitted that the said ration card was not registered in D-4
of the said office. Accordingly, pleadings were made that the application form submitted to get themselves enrolled as voter, which was Form-6 and
which was also appended, was on the basis of a forged and fabricated document and creation of the same attracted the provisions contained in the
IPC. Inaction on the part of the official respondents on addressing the said representation was the cause of action.
10. In the said petition, the following order was passed on 21. 08.2012 (Annexure P-13):-
“Heard.
Issue notice of motion.
At this stage, Mr. Sameer Singh, Assistant Advocate General, Haryana appears and accepts notice on behalf of the respondents.
After hearing the learned counsel for the parties, going through the record, with their valuable assistance, considering the entire matter deeply and
without expressing any opinion on the merits of the case, the instant petition is disposed of with the direction to the Commissioner of Police, Gurgaon
(respondent No.2), to decide the representation/complaint (Annexure P-1), filed by the petitioner and to take appropriate action, in accordance with
law, within a period of two months from the date of receipt of the certified copy of this order.â€
11. The official respondents on the basis of the said direction had inquired into the said matter and filed the same on 05.11.2012. Copy of the said
inquiry report as such which was approved by the Commissioner of Police, Gurgaon was duly communicated to the petitioner by the DCP West,
Gurgaon. It is not disputed that since the same has been mentioned in the impugned complaint and is also on record, duly exhibited by the complainant
himself as Ex.CW8/6.
12. Not being satisfied with the said inquiry report, the private complaint was filed on 10.01.2013 (Annexure P-1) in which the summoning order was
passed on 23.03.2013 (Annexure P-2).
13. It is also pertinent to notice that the complainant had also filed a petition under Section 156 (3) Cr.P.C., regarding similar allegations qua other
beneficiaries as such namely Pinky etc. and on the same issue regarding creating of fake votes. A inquiry had been conduced by the Special
Investigation Team, Palam Vihar, Gurgaon and a report had been given the false votes had been created. However, the petitioner had withdrawn his
complaint qua the said persons and an order dated 16.08.2014 had been passed by the Magistrate withdrawing the proceedings initiated. The
complainant had then challenged the order by filing CRM-M-33192-2014 under Section 482 Cr.P.C. before the Court by holding that Magistrate has
not proceeded with the complaint, despite the fact that there was a inquiry report against the alleged accused. It was noticed by this Court that the
complainant could have proceeded by recording his evidence, but the Trial Court had chosen not to proceed, since the complainant had himself
withdrawn the complaint and the order of the Trial Court dropping the proceedings had been upheld on 12. 02.2015 (Annexure P-10) These facts are
necessary to take into notice the fact that the complainant had initiated a large number of complaints as such against Sukhbir Kataria and other co-
accused, but seems to have compromised the issue qua the other co-accused in certain cases at some stage and sought to go back on it at a later point
of time. Even Crl. Complaint No.92 dated 21.02.2017 was then filed by Om Parkash against Pinky etc., in which both the petitioners Sukhbir Kataria
and Devinder Singh Kadiyan were arrayed as accused, though not summoned, by order dated 18.09.2019 (Annexure P-11).
14. The discharge by the petitioner in the present complaint as such was sought merely on the ground that of locus-standi as such and the non-
registration of the Society under the new Act, which was repelled on 07.04.2018 (Annexure P-4), on the ground that it was filed at a belated stage and
was an attempt to delay the proceedings and similar application under Section 245 (2) Cr.P.C., had been dismissed earlier. The revision before the
Additional Sessions Judge, Gurgaon also of the petitioner Sukhbir Kataria was rejected vide order dated 06.08.2018 (Annexure P-6), on the ground
that the law could be set into motion by anyone and merely because the complainant as such was a convict in a murder case would not as such bar
him from setting the criminal law into motion.
Arguments of the counsel
15. Senior counsel Mr. Randeep Singh Rai, has restricted his argument to the legal aspect as to the non-application of the mind of the Magistrate while
passing the summoning order qua the clean chit given to the petitioner as per the report of the police dated 05.11.2012 and submitted that once the
same was on record, the Magistrate was duty bound to examine the same and, thereafter only pass the summoning order. It is further submitted that
the reasons have been duly given not to act on the complaint as such of the complainant and the Trial Court could have differed with the said reasons
and then only it could take cognizance on the private complaint on the statement of the witnesses, which had come forth in support of the complaint.
16. The second limb of the argument was that the photocopy of the Forms-6 had been exhibited as Marks A to D and on the basis of the said
documents, which were not even duly proved in accordance with law, an opinion had been arrived at that there was a forgery as such. The Court had
wrongly come to the conclusion that handwriting was prima facie of the accused No.6 in his hand, while comparing it with other allegedly admitted
handwriting and, thus, it was submitted that there was no material as such on the record, which would warrant a summoning order and merely on
account of statement of PW-6 Sunita Kataria, who was a Member Panchayat from a opposite camp, the signatures as such had been co-related.
17. Mr. Deepender Singh, on behalf of accused No.7 Devinder Singh Kadiyan, had assailed the summoning order, on the ground that there was no
resolution as such by the Manch in favour of the complainant and, therefore, the complaint was not maintainable in the absence of any resolution and
he, thus, had no locus-standi to initiate the criminal proceedings. It was further submitted that under Section 197 Cr.P.C., the petitioner was as such
not liable to be summoned without any sanction and in similar circumstances in another complaint (Annexure P-11) the JMIC had not summoned him.
In the absence of any specific finding recorded by the summoing Court qua the role of the petitioner, he could not as such have been summoned under
the provisions of IPC and the complaint qua him was liable to be quashed.
18. Mr. Raparia, counsel for the petitioner/complainant in CRM-M-16754-2019 and for the respondent in CRM-M-39202 & 54078-2018 on the other
hand has submitted that no FIR was lodged and the inquiry was not a valid investigation and never submitted in the Court for approval. The
complainant was not given a chance to file a protest petition and which was his right as such and the Court could take cognizance and was not bound
by the opinion of the police authorities. The fall back has also made upon the provisions of the Section 47 & 67 of the Indian Evidence Act, to submit
that one of the witnesses a Panch had submitted that she had seen the accused signing being a Sarpanch and the Court as such could opine on the
said signatures and only a prima facie case had to be seen at the time of summoning. Therefore, the summoning order was justified and it was argued
that there was no reason as such for this Court to interfere in the same. It is further submitted that the stay had been taken at a belated stage, though
the petitioner had put in appearance in pursuance of the summoning order way-back in the year 2013.
Allegations in the complaint
19. A perusal of the paper-book and record would go on to show that the grievance in the complaint under Sections 420, 467, 468, 471, 120-B of the
IPC read with provisions of Representation of Peoples Act, 1950 is qua the misuse of the electricity bill/meter installed in the house of Santram Saini
son of Chiranjee Lal Saini and the forged ration card bearing No.729664 as referred to above. It is averred that Santram Saini had died six years
earlier and electricity meter VDI 1507 had installed at his son's house namely Parveen Saini since last 20 years. Information had been asked regarding
the ration card and it had been found that the same was not entered in D-4 register by the Food and Supply Department. Copy of D-1 form had not
been given, which was necessary to prepare a ration card. The accused No. 1 to 5 who were stated to be close relatives of the petitioner Sukhbir
Kataria had no house, shop and business in Gurgaon and their place of residence was Bahadurgarh Vidhan Sabha Area 64 and the identity cards had
been attached. The allegations as such against petitioner-Sukhbir Kataria was that he was the kingpin and had prepared these documents and filled up
the declaration Form No.6/8 in his handwriting and also filled up the column required to be filled by the registering authority and, thus, got elected by
using invalid votes and by wrong means.
20. The accused No.7 Devinder Singh Kadiyan being a District Food & Supply Officer is stated to have made available a blank ration card on which
the accused No.6 had prepared forged documents and reliance had been placed upon FIR No.513 dated 06.10.2009, FIR No.404 dated 27.11.2009
and FIR No.240 dated 27.04.2005 registered at Police Station City, Gurgaon. Reference was also made to the order passed by this Court under
Section 482 Cr.P.C. and that the police had been directed to investigate the matter deeply, impartially, properly and to take the legal action. Averments
were, accordingly made that police officials including SHO and Commissioner of Police, Gurgaon, accused No.8 & 9 were trying to save the other
accused by holding out that the complainant had not cooperated in the investigation and no action had been taken and the matter had been settled with
their connivance. Resultantly, the prayer made was that the private accused be summoned and the police officials be also summoned and against them
order for legal and departmental inquiry be issued.
Foundation of the case for summoning
21. The summoning was effected by the Trial Court while noticing that PW-1 to PW-8 had been examined. Statement of PW-1 Anil Kumar, Sub-
Inspector was noticed that the ration card had not been recorded in D-4 register and a finding was recorded that thus it was not issued by the
department concerned. It was noticed that accused No.1 to 5 had votes at Bahadurgarh since the year 2005 which were valid. The application forms
No.6 of theirs had been examined that the votes were prepared in the year 2009. The statement of PW-5 Parveen Saini was taken into account that
the electricity connection bearing account No.CT-11-1770 was in the name of his father Sant Ram. Similarly, statement of PW-6 Sunita Kataria, the
Member Panchayat was taken into account to identify the signatures of Sukhbir Kataria over Form No.6. It was noticed that accused No.5 had been
shown as a voter thrice and the ration card had been used alongwith the electricity connection to fill up Form No.6 by the petitioner-Sukhbir Kataria.
Comparison of the handwriting with the certificate issued to one Smt. Parvesh was made to come to the conclusion that two handwritings were of one
person and similarly another application form of one Nisha was also perused. While referring to a set of judgments, the JMIC thus, came to the
conclusion that prima facie case was made out for preparing false documents and voting cards and forged documents were used as genuine
documents, despite having the said knowledge and there was criminal conspiracy on the part of the petitioners and the summoning order was issued.
The reasoning of the summoning order as such on the basis of which the criminal proceedings had been set into motion against the petitioners herein,
Sukhbir Kataria and Devinder Singh Kadiyan, reads as under:-
“5. The entire edifice of the allegations of the complainant rest upon the assertions that the accused no.6 contested and ultimately won the elections
by forging numerous documents in collusion with the accused no.1 to 5 and 7. The complainant submitted and argued that the forgery was committed
by the said accused persons, specially the accused no.6, in a very systematic and clever manner. The names were included in the voters list on the
basis of forged and false documents, which were prepared by the said accused persons. The complainant also submitted that the evidences on record
clearly reflect and indicate that a forgery was committed by the accused persons for facilitating the election of their relative Sukhbir Kataria i.e. the
accused no.6.
6. Sh. Anil Kumar, Sub Inspector Food and Supply, Gurgaon is PW-1. PW-1 deposed that the ration card bearing no.729664 i.e. the said ration card in
the name of Sh. Sant Ram Saini son of Sh. Prahlad Singh, house no.209, Raj Nagar, Gurgaon was not recorded in their D-4 register. Meaning thereby,
the said ration card is not issued by the department concerned.
7. Sh. Raj Pal, election Kanoongo Bahadugarh, Jhajjar, is PW-2. PW-2 brought the summoned record and deposed on the basis of said record that the
accused Sant Ram was having his vote in Bahadurgarh against the identity no.FNN1131176. Similarly, the accused Santosh, accused Sandeep and
accused Sanjeev were also having their votes in Bahadurgarh vide IDs no.FNN1127414, FNN2113033 and FNN11208040, respectively. The said IDs
were there since the year 2005 and are valid till date. He also produced the certified copies of the aforesaid IDs.
8. Sh. Daya Chand, election Kanoongo, Gurgaon is PW-3. PW-3 produced the application form no.6 of the accused Sant Ram, accused Sanjeev,
accused Sandeep, accused Sunaina and accused Santosh, on the basis of which the votes of aforesaid accused persons were prepared in the year
2009. PW-3 deposed that form no.001B was issued by his office. The accused persons namely, Sandeep, Sant Ram, Sanjeev, Santosh and Sunaina
were shown in the voter list of the year 2009 at serial nos.386 to 390, respectively. This apart, one Sunaina daughter of Sahdev's vote was deleted at
serial no.834. Similarly, at serial no.261 one Sunaina daughter of Sahdev's, at serial no.304 Poonam wife of Devender, at serial no.606 Kavita daughter
of Mohar Singh's names were recorded.
9. Sh. Jitender is PW-4. PW-4 brought the summoned record qua the said electricity connection in the name of one Sant Ram, resident of Gurgaon.
10. Sh. Parveen Saini is PW-5. PW-5 deposed that the said electricity connection bearing account no.CT-11-1770 was in the name of his father Sh.
Sant Ram. The said electricity connection was installed in their premises since long. One Sh. Chiranji Lal was his grand father.
11. Smt Sunita Kataria, is PW-6. PW-6, inter alia, deposed that Sukhbir Kataria, the accused no.6, remained saprnach of village Gurgaon from the
year 2000 to 2005. She was member panchayat along with the accused no.6 from wards no.4. She had seen the accused no.6 reading and writing.
She identified the hand writing of the accused no.6, over page no.2 of various forms no.6. The official columns were also filled by the accused no.6 in
his own hand writing. She identified the signatures of the accused no.6 at point A, over mark A to mark D.
12. Constable Vinay Kumar is PW-7. PW-7 brought the summoned record qua the complaints made by the complainant to the police authorities.
13. Sh. Om Parkash, the complainant, is PW-8. In his oral deposition PW-8 reiterated his assertions qua the fraud and forgery committed by the
accused no.1 to 7, in pursuance of their conspiracy.
14. Ex.PW-4/A is duplicate bill of the said electricity connection. The perusal of Ex.-4/A reflects that the said electricity connection was installed in
the name of one Sant Ram, resident of village Gurgaon. Similarly, Ex.PW-5/A/1 to Ex.PW-5/A/12 are various bills qua the said connection.
15. Ex.C-8/1 to C-8/11 are the RTI applications and voters list in 77-Gurgaon assembly constituency supplied by the department concerned. The
perusal of said list reflects that the name of accused no.1 to 5 were recorded in the said voter list. The name of the accused no.5 is recorded trice
therein. Ex.C-8/A to Ex.C-8/K are various ration cards issued by the department concerned. Mark A to mark D are the various application forms
filled up by the accused no. 1 to 5. Mark A is the application form of the accused Sant Ram with the copy of said ration card bearing no.729664 as
well as said electricity connection. On page no.2 of mark A is the self verification as well as the entries qua official proceedings. The bare perusal of
hand writing at point A along with the certificates issued (copy of which is on record) to one Smt. Parvesh, by the accused no.6, in his own hand
writing prima facie reflects that two hand writings were of one person. Similarly is the situation with documents mark B to mark D. The application
form of one Nisha was also there on the record. It is pertinent to mention hereitself that the said application form is also accompanied by the
electricity bill of the said electricity connection.â€
Reasoning of this Court
22. On the issue of locus-standi, this Court is not convinced with the argument raised as such as to whether there is a resolution in favour of the
complainant as it has been noticed that on an earlier occasion the Manch was agitating for the misdeeds as such which had been allegedly committed
regarding creation of bogus votes. Thereafter one of the office bearers had filed complaints in his private capacity also, though it has been mentionoed
that he is an office bearer of the said Society. The Court below had rightly noticed that if a forgery as such had been done and mis-representation has
been made, any person can set law in motion. Therefore, the contention raised on the locus-standi of the complainant had been rightly upheld by the
Courts while dismissing the application for discharge on that ground and, therefore, the impugned orders on that basis are not liable to be set aside.
23. It is pertinent to notice and which is apparent from the record that the complainant, PW-8 was examined on 23.03.2013 on which date the
summoning order was issued, which is a detailed order running into 13 pages and referred to a large number of judgments, apart from the reasoning as
reproduced above. However, the JMIC had failed to take into consideration that there was a police report already on record dated 5. 11.2012 which
had come about on account of litigation initiated by the petitioner in his capacity as a Secretary of the said Manch. The order passed by this Court on
21.08.2012 (Annexure P-13) has already been reproduced in paragraph No.10 and background has also been discussed above in paragraphs No.6 to
14. Once the same had been passed on the petition filed by the complainant as a office bearer without making the accused even a party in the petition
before this Court, it would not lie in his mouth to say that the proper procedure was not followed by the police by enquiring into the complaint as such
on account of not lodging an FIR. The complainant had thus been satisfied with the order that a decision should be taken on the
complaints/representation filed by him and thereafter had never approached this Court against the filing of his representation before police authorities
dated 05.11.2012.
24. These aspects were never noticed by the Trial Court, rather it was pertinent to notice that on the date when the summoning order was passed, the
complainant had given up the police officials who had been arrayed as accused No.8 & 9 against whom he had also a grouse for not properly
investigating the matter, as has been noticed in the criminal complaint itself.
25. A perusal of the report submitted by the police officials, would go on to show that specific inquiry was made regarding ration card No.729664
wherein it had come forth that ration card had been prepared under the signatures of Devinder Singh Kadiyan, one of the present petitioners, but entry
was not recorded in registered D-4 by Sub Inspector Gokal Chand. Further it was also concluded that there was electricity bill in the name of Sant
Ram bearing an account number, which was also got verified by the SDO, which stood in the name of Sant Ram son of Prahlad Singh. The residence
proof of said Sant Ram from the Income Tax Department had also been got verified. Similarly, age proof of Sanjeev son of Sant Ram and age proof
of another accused Sunena Lochab daughter of Sehdev Singh and the fact that Sant Ram and his family were enrolled at Bahadurgarh as voters had
been looked into. It was found that they had made a declaration regarding the deletion of their names from the voter list of Bahadurgarh Assembly
Constituency. Regarding the preparation of 32000 forged votes, it was noticed that the complainant had been issued notices to come forth, but he did
not make any record available to the inquiry officers. The DCP (West), Gurgaon had also written letters to the Election Officer, Gurgaon to make
available the record of the forged votes, which was stated to have been submitted before this court in the election petition, which has also been
referred to above and in such circumstances, the report had been filed. It is, thus, apparent that the basis as such for summoning which was on the
ground that a forged ration card had been issued does not seem to be correct as such, once the police officials had also inquired into the matter and
come to a contrary finding. Regarding the allegations of preparing of forged ration card and filling up of Form No.6 for becoming the second set of
voters in Gurgaon constituency had also apparently been looked into. Relevant portion of the inquiry report dated 05.11.2012 reads as under:-
“That perusal of report submitted by said officials/officers who conducted the said enquiry qua the allegation leveled by the petitioner in
complaint/representation Annexure P-1, reveals that the Ration card no.729664 relating to the family of Sant Ram was got verified from the office of
District Food & Supply Officer Sh. B.P. Yadav, who on enquiry, in writing verified that the said Ration Cards were prepared by the Sub Inspector of
their office and bears the signature of the then Inspector Devender Singh Kadian, but inadvertently entry in this regard was not recorded in register D-
4 of the office record by Sub-Inspector Gokal Chand.
That perusal of the said report further reveals that electricity bill in the name of Sant Ram A/c No.00441 dated 23.03.2009 meter no.VD1-1507 was
also got verified by the said officials from SDO-CCC-IDC, DHBVN, who on enquiry in writing reported that the said A/c no.VD-1507 stands in the
name of Sant Ram and is issued by their office. That on further enquiry from the office of Income Tax Department, Income Tax Officer, Card No.2
(1), Gurgaon, regarding PAN Card No.BQEPS3318A in respect of Sant Ram, it is reported in writing that as per their office record the same has
been issued to Sant Ram s/o Sh. Prahlad Singh and is correct/genuine.
That perusal of the said report further reveals that certificate regarding age proof of Sanjeev s/o Sh. Sant Ram No.DN666075 enrollment No.96-1 R0-
701-0039, was also got verified from the office of Secretary, Haryana Education Board, Bhiwani & on verification, the concerned official of the said
Board, in writing verified the same genuine
That perusal of said report further reveals that age certificate of Smt. Sunena Lochab d/o Sh. Sehdev Singh, No.DNO2115134 enrollment No.089562,
issued by CBSE Board Central Secondary Education Board, Ajmer was also got verified from the said Board and the same is found genuine, as
reported in writing by the concerned official of the said Board.
That perusal of the said report, further reveals that verification regarding the fact as to whether Sant Ram and his family member are also enrolled as
voter in Assembly Constituency Bhadurgarh No.64 Sr. No.100 or not ; which on verification as per report given in writing by the concerned official of
said Election Office, it is revealed that their name are not enrolled as a voter in said Assembly Constituency and on enquiry it was found that when
they submitted Form-6 in Gurgaon for enrollment of their name in Gurgaon Constituency Voter list, they have made a declaration regarding the
deletion of their name from the voter list of Bahadurgarh Assembly Constituency.â€
26. It is the settled principle that the Magistrate could have always differed with such report, but once it had been approved by the Commissioner of
Police, Gurgaon who had been directed by this Court to look into the same and it was on record and the record of the same could have been
summoned from the office of the DCP (West), Gurgaon. The inquiry had been got conducted by the police officials at the instance of the complainant
himself, who is aggrieved against the inquiry proceedings. The Magistrate could not brushed aside and ignored the report which seems to have
apparently been done on account of the haste, in which the summoning order was passed on 23.03.2013 on the same day the inquiry report
(Ex.CW8/C) was exhibited when produced by the complainant. Thus, the old adage came into play that is “Justice hurried is Justice buriedâ€. It is,
thus, apparent that the Magistrate lost sight of the said factum even though it was specifically mentioned as such in the complaint itself. Thus, the
summoning order is liable to be quashed on this ground qua Sukhbir Kataria.
27. Reliance can be placed upon the judgment of this Court passed in 'Kuldip Raj Mahajan Vs. Hukam Chand', 2008 (1) RCR (Crl.) 370, in which the
same issue had arisen wherein also the police had investigated into the matter and recommended a cancellation. The said factum was not disclosed in
the private complaint filed. Resultantly, this Court came to the opinion that the Magistrate while passing the summoning order had not taken into
consideration the police report, which was also produced by the complainant and held that the summoning order could not have been passed. The
complainant had concealed the cancellation report of the police from the Magistrate, which was also malafide on the part of the complainant in that
case and resultantly the criminal proceedings in toto were quashed exercising the powers under Sections 482 Cr.P.C. Relevant portion of the said
judgment reads as under:-
“9. Learned counsel for the petitioner next contended that the FIR registered at the instance of the respondent, relating to the same matter, was
investigated by Deputy Superintendent of Police and was found to be false and cancellation report in the case was accordingly recommended. It was
contended that the learned Magistrate, while passing the impugned summoning order, did not take into consideration this aspect of the matter and even
the respondent, in his impugned complaint, concealed this material aspect from the court. The respondent, in paragraphs 7 and 8 of his reply, has
admitted that the FIR was investigated by Deputy Superintendent of Police and was cancelled. Further in paragraph 9 of the reply, it has been alleged
that respondent had to file the impugned complaint after cancellation of the FIR. It would indicate that the respondent, after being aware of the
cancellation of the FIR, filed the impugned complaint, but did not disclose in the complaint that FIR lodged by him had been cancelled. On the other
hand, it was pleaded in the impugned complaint by the respondent that the police had not taken any action and had not arrested the accused i.e. the
petitioner. Thus, the respondent, instead of disclosing that the FIR had been cancelled, alleged that the police had not taken any action. However, the
matter had already been investigated by a Gazetted Officer of the rank of Deputy Superintendent of Police and no truth was found in the allegation of
the respondent. The matter of concealment by the respondent does not rest here. Learned Magistrate vide order dated 1.9.2000 (Annexure P-18)
observed that since investigation by the police was in progress in relation to the subject matter of the impugned complaint, the proceedings of the
complaint were ordered to be stayed in accordance with Section 210 of the Code and report from the Investigating Officer was called for. However,
even at that stage, the respondent concealed from the court of learned Magistrate that the police had submitted cancellation report in the FIR.
10. In the aforesaid context, learned counsel for the petitioner submitted that inspite of having called report from the Investigating Officer vide order
dated 1.9.2000 (Annexure P-18), the learned Magistrate, while passing the impugned summoning order dated 19.9.2002, did not take into consideration
the cancellation/investigation report of the police. Perusal of impugned summoning order (Annexure P-2) reveals that there is no reference at all to the
investigation report/cancellation report of the police in the summoning order. Without considering the investigation report/cancellation report of the
police, the impugned summoning order could not have been legally passed by the learned Magistrate. The respondent, despite knowledge, concealed
the cancellation report of the police from the learned Magistrate. This is another indicator of mala fide on the part of the respondent.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
13. Learned counsel for the respondent emphasized that disputed questions of fact cannot be adjudicated upon in the instant petition under Section 482
of the Code. Reliance in support of this contention has been placed on judgment in the case of T. Banamber Patra and others v. Vinod Kumar Sethi
and another, reported as 2007 (1) Law Herald (P&H) 54 and also on an unreported order dated 12.1.2006 of this Court in Crl. Misc. No. 2052-M of
2006 titled as Ranjit Singh and others v. Sharda Devi. There cannot be any quarrel with this legal proposition. Disputed questions of fact cannot be
gone into in a petition under Section 482 of the Code. However, this Court cannot be a helpless spectator when it is made out that the criminal
prosecution is mala fide and an abuse of the process of the court. In fact, this Court has inherent power and corresponding duty to prevent abuse of
the process of any court or otherwise to secure the ends of justice. In the instant case, the impugned complaint is result of mala fide as the respondent
was nursing grudge against the petitioner as discussed herein above. The witnesses cited by the respondent were also aggrieved against the petitioner.
The alleged incidents dated 9/10.9.1999 were not mentioned in letter dated 10.9.1999 (Annexure R-4) sent by the respondent. There was long and
unexplained delay in reporting the matter to the police. After investigation by Gazetted Officer, the FIR lodged in the same matter was found to be
false and cancellation report was submitted by the police. The respondent, despite being aware of the cancellation report, concealed the same from
the learned Magistrate. The impugned summoning order has also been passed without considering or even referring to the cancellation report.
Keeping in view all these circumstances, it is a fit case in which this Court has to exercise its inherent powers under Section 482 of the Code by
quashing the impugned complaint and summoning order so as to prevent the abuse of process of court and to secure the ends of justice. In addition to
it, the alleged offences are also not made out from the allegations in the impugned complaint. For the detailed reasons stated herein above, the instant
petition is allowed and the impugned criminal complaint Annexure P-1 and impugned summoning order Annexure P-2 are quashed.â€
28. The said view has been consistently followed by this Court in 'CRM-M-1104-2008 'Meena and another Vs. State of Haryana and another' decided
on 22.01.2009, CRM-M-15299-2010 'Dinesh and others Vs. Shyam Sunder and another' decided on 01.04.2013, Criminal Revision No.1307 of 2012
'Parveen Sharma Vs. Charan Singh and another' decided on 30.08.2013 and CRM-M-28254-2013 'Sandeep Singh @ Sunny and another Vs. State of
Haryana and another' decided on 14.11.2014.
29. Reference can also be made to a judgment passed by the Apex Court in this context in 'B. Chandrika Vs. Santhosh and another' 2014 (13) SCC
699. The facts in the said case was that summons had been issued in a private complaint in spite of the fact that there was a police report in favour of
one of the co-accused. It was held that Magistrate as such has the power to take cognizance of the complaint, but judicial discretion and application of
mind are necessary. It was noticed that the accused as such was the divorced wife of the main accused and was residing separately as per report of
the police and she had never received any money from the complainant for providing job to the relatives of the complainant or any other person. The
statement of the complainant had also been noticed, which was made during the investigation that he had not seen the accused wife at the time of
giving money and had not talked to her. It was, thus, held that in absence of money being entrusted to the divorced wife who was not residing in the
residential house of the main accused, proceedings as such summoning her were liable to be quashed. Relevant portion of the said judgment reads as
under:-
“ 6. The power of the Magistrate to take cognizance of an offence on a complaint or a protest petition on the same or similar allegations even after
accepting the final report cannot be disputed. It is settled law that when a complaint is filed and sent to police under Section 156(3) for investigation
and then a protest petition is filed, the Magistrate after accepting the final report of the police under Section 173 and discharging the accused persons
has the power to deal with the protest petition. However, the protest petition has to satisfy the ingredients of complaint before Magistrate takes
cognizance under Section 190(1)(a) Cr.P.C.
7. This Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha & Ors. [(1982) 3 SCC 510] held that the Magistrate is not debarred from taking
cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of police report. The judgment was followed by a
Three- Judge Bench judgment of this Court in Kishore Kumar Gyanchandani v. G.D. Mehrotra [AIR 2002 SC 483 = (2001) 10 SCC 59].
8. The High Court, in our view, rightly applied the legal principle, but omitted to consider the crucial question as to the involvement of the second
accused, the wife of the first accused. In this connection, it is pertinent to refer to the statement of the complainant having been made during the
investigation, which reads as follows :-
“Thereafter I, Kunjumon and Rajan were gone to Thiruvanthapuram and met his wife then she told that they were separated to each other and she
don’t know nothing about him. I have given payment ot Ramchandran Unni on the words of Rajan and Kunjumon. I don’t know where he is
now. At the time of paying the amount I have not seen his wife or not talked to her. I don’t know anything about him so I have given this
complaint.â€
9. The above statement of the complainant clearly indicates that money was entrusted to the first accused (the husband of A-2) and not to A-2.
Complainant has also stated that at the time of paying the amount, the wife was not seen. Police on investigation, noticed that during the period when
money was entrusted to the first accused, the second accused was not in the residential house of first respondent. Investigation revealed that they
were separated and second accused started living at Thiruvananthapuram.
10. The appellant has also produced a copy of decree of divorce dated 25.1.2010 before the Court, which will indicate that the second accused had
obtained a decree of divorce against the first accused on the ground of cruelty under Section 13(1)(a) of the Hindu Marriage Act, 1955. Considering
the fact that the second accused had no role, even according to the complainant, there is no reason to prosecute the second accused. In our view, the
Magistrate has not considered this vital aspect when the protest petition was considered by him.
11. Magistrate has to exercise judicial discretion and apply his mind to the contents of the petition. The refer report as well as the statement of the
complainant would indicate that no offence has been made out so far as the second accused is concerned since, admittedly, no money was entrusted
to her and that second accused is the divorced wife of the first accused. That being the factual situation, we are inclined to allow the appeal so far as
the second accused is concerned and the summons issued against the second accused would stand quashed. However, it is open to the Magistrate to
proceed against the first accused.
12. The appeal is allowed, as above.â€
30. This Court in 2005 (1) RCR (Crl.) 1 'Jagmail Singh Vs. State of Punjab and another' has held that once there are two different reports; one in
favour of the accused and one against him, there has to be application of mind by the Court, which principle would also apply in the present set of case
as the Trial Court while summoning the accused, failed to take into account the enquiry report prepared by the police in favour of the accused. On this
account also this Court is of the opinion that summoning as such made under the provisions of Sections 420, 467, 468, 471, 120-B IPC was not made
out. It is pertinent to notice that summoning has not been done under Section 31 of the Representation of Peoples Act against the petitioners and other
accused also.
31. Another aspect is the fact of summoning of Sukhbir Kataria is on the basis of evidence as such of rival Member of the Panchayat on the strength
of photocopies of documents. Counsel has pointed out that from the statement of PW-3 Daya Chand, the Election Kanungo recorded on 17.01.2013
that only the photocopy of Form No.6 had been brought on record as Mark A to D and originals had never been brought on record. Relevant portion
of evidence of PW-3 reads as under:-
“That I have brought summoned record, according to that on the application form for making votes on Form No.6, the name of Sant Ram son of
Pehlad Singh resident of 209/21, Gali No.8, Raj Nagar is mentioned. On the second form name of Sanjeev son of Sant Ram resident of 209/21 Gali
No.8, Raj Nagar. On the third form name of Sandeep son of Sant Ram resident of 209/21 Gali No.8, Raj Nagar. On the fourth form name of Sunaina
wife of Sanjeev and on the fifth form name of Santosh wife of Sant Ram resident of 209/21 Gali No.8, Raj Nagar have been mentioned. Their votes
have been made in 2009 and photocopies of the same are marked as Mark A to Mark D. Form No.001B on the file had been issued by our office and
I have not brought the original of the same, which is marked as Mark E.â€
32. Thus, from perusal of the above, it would go on to show that the basis as such for summoning of Sukhbir Kataria was on the strength of photocopy
of the documents and by the Court coming to the conclusion that his handwriting and signatures read in comparison to the admitted signatures were
rather of one and the same person. The allegations as such of forgery to fill out the forms on the part of Sukhbir Kataria as such would not be justified
by the Trial Court in the absence of the originals as such and without an opinion of any expert evidence. Reliance can be placed upon the judgment of
the Apex Court passed in 'V. Sujatha Vs. State of Kerala and others' 1994 Suppl. (3) SCC 436.
In the said case the accused had been acquitted for the offences under Section 420, 467, 468, 471 read with Section 120-B IPC. The High Court of
Kerala as such had set aside the acquittal order and convicted the accused. While setting aside the same, the Apex Court noticed that the conviction
was recorded on the basis of the signatures of the Assistant
Director on a carbon copy from which the photostat copies were prepared and stated to be forged, but the originals had not been produced which
were with the Customs Department and the handwriting expert had also expressed his inability to given any opinion on the photostat copy. In spite of
that conviction was recorded under Section 471 IPC, which as noticed was set aside. Similarly, for the offence under Section 420 IPC also, photostat
copies of the certificate of origin were not produced, though available and the finding that forgery had been committed at the instance of the accused,
was, thus, set aside on account of the originals not having been produced at the time of trial. The relevant portion of the said judgment reads as under:-
“25. On close scrutiny of the above views of the High Court, the least we can say is that its approach, and that too in an appeal against acquittal,
was highly wanting. The prosecution had a long distance to travel between ""what may be true"" and ""what must be true"". In the absence of the original
of Ex.P9 and P15 being produced at the trial, which as many as four prosecution witnesses admit were available with the Customs, how could a case
of forgery be built up on their photostat copies, punishable under section 471 of the Indian Penal Code and the sequal offence under Section 420
I.P.C.? How could in such state of evidence and vacillating views, as recorded by the High Court, be the basis of the conviction of the appellant
singularly and substantively, when originally he was not charged for such offences, but with the aid of section 120-B I.P.C.? Having acquitted the
other two accused of the charge of conspiracy for commission of these offences, how could the High Court take the appellant to have been charged
under Section 471 and 420 I.P.C. and not spell out a case of prejudice to him leading to mis-carriage of justice? In our view, the High Court over
looked these important matters and rather over-simplified the issue.â€
33. In similar circumstances, in 'Budh Ram Vs. State of Hayrana', 2010 (2) RCR (Crl.) 352, this Court in a revision petition set aside the conviction
under Sections 419, 420, 467, 468, 120-B IPC, which was based on the sale deeds, which were stated to be forged, but originals were not produced. It
was noticed that no effort was made to get compared the questioned thumb impressions of the alleged vendors, on the copies of the sale deeds, with
the standard or specimen thumb impressions of the original owners or of their own specimen or standard thumb impressions and, therefore, the
conviction as such was also held to be perverse and illegal as the fraud, forgery and mis-representation could not also be made out, on the basis of
such evidence. Relevant portion of the said judgment reads as under:-
“12. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is a fit case,
in which the revision petitions, should be accepted, for the reasons to be recorded hereinafter. It is settled principle of law, that while exercising
revisional jurisdiction,this Court, cannot revaluate and reappreciate the evidence, produced by the prosecution, until and unless it comes to the
conclusion, that the findings arrived at by the Courts below, are perverse or illegal, being not based on any admissible evidence, or there was mis-
reading and misappreciation of evidence, produced by the prosecution. The case of the prosecution precisely, was that Dhani Devi impersonated
Bimla Devi, a co-owner and got executed the sale deed, in her favour. Dhani Devi has since been acquitted.
The original sale deeds, admittedly, in respect whereof, the forgery was allegedly committed, did not see the light of the day, at any point of time,
during the trial of the case. Only the copies thereof, were produced, on record. No explanation, what to speak of plausible, was furnished by the
prosecution, as why the original sale deeds, were not recovered from the vendees, during the course of investigation. Had any explanation, been
furnished, the matter would have been considered, in the light thereof. The Court cannot coin any explanation, of its own, to fit in with the case of the
prosecution. The offence of forgery can only be committed in relation to the original documents and nor with respect to the copies thereof.â€
34. Regarding Devinder Singh Kadiyan, accused No.7, this Court is of the opinion that the reading of the complaint itself does not make out any case
against him as the only allegations against him that he made available a blank ration card on which the accused No.6 prepared the forged documents.
Reliance has though been placed upon on various FIRs, which had been lodged regarding different allegations. It was specifically stated that the said
accused was in Government service and had made available blank ration card to accused No.6, who thus prepared the alleged ration card and
therefore, the benefit of protection has also to be granted to him, as nothing was noticed by the Trial Court from the evidence on record that the said
person had at any point of time supplied blank ration cards to Sukhbir Kataria and, thus, was a party to the criminal conspiracy.
35. It is the settled principle that criminal law should not be set into motion as a matter of course. It has been time and again held that the Magistrate is
not a silent spectator at the time of recording of preliminary evidence and summoning the accused on the asking is not to be done unless there is
cogent evidence and there is a applicability of mind. In the absence of handwriting expert in support having been produced and without the originals
being on record, no finding could have been made, as it would not lie as such in the mouth of the complainant to fall back on Section 45 & 67 of the
Indian Evidence Act that comparison can be made by the Court on the basis of photocopies of the records of Form No.6 for the purpose of
summoning, which cannot be justified. Even if it is taken as gospel truth, Form No.6 if filled up by accused No.6 would not constitute an offence as
such and it would have necessarily have to be proved that the signatures of the said petitioner had been appended on the said form in place of the
other co-accused as such to make out any offence of cheating. In the absence of any such valid opinion of the expert, on mere the strength of the
photocopies produced and in the absence of any sufficient evidence, this Court is of the opinion that the summoning order on the said basis is not
legally sustainable. The Form No.6 has been independently certified by various authorities and, therefore, merely because a benefit as such would
arise to the accused No.6 would not be sufficient as such to connect the accused with the crime. In case, there is a wrong declaration as such and the
co-accused had been registered as voters without verifying and whether the documents accompanying therein are proper or not would be only an
omission of the official respondents who had made votes of the person in the Gurgaon constituency, but it cannot be said that the accused No.7 as
such is liable to be prosecuted. The provisions of Section 197 Cr.P.C. bars the Court to take cognizance if any person while acting or purporting to act
in the discharge of his official duty had to be kept in mind but was ignored by the Trial Court.
36. In the case of 'N. Bhargavan Pillai (dead) by Lrs.and another Vs. State of Kerala' 2004 (13) SCC 217, the Apex Court has held that Section 197
Cr.P.C. provides protection not only to the serving public servant, but also to a retired public servant, while placing reliance upon 41st Report of the
Law Commission. Relevant portion of the said judgment reads as under:-
“9. Section 197(1) provides that when any person who is or was a public servant was not removable from his office save by or with the sanction of
the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty,
no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person who is employed or, as the case may be,
was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government and (b) in the
case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the
affairs of a State, of the State Government.
10. We may mention that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed ""it
appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded
by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his
official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that
official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of
the expediency of prosecuting any public servant"". It was in pursuance of this observation that the expression 'was' come to be employed after the
expression 'is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.
11. Above position was highlighted in R. Balakrishna Pillai v. State of Kerala (AIR 1996 SC 901).
37. A similar view was also taken in the case of 'Anjani Kumar Vs. State of Bihar', 2008 (2) RCR (Crl.) 849, relevant portion of which reads as
under:-
“8. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings
for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to
afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties
without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution.
This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of
his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a
reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant
from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily
dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the
discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged
to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so
much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall
within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this
section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a
reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard
would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for
a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public
servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public
servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
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10. Prior to examining if the Courts below committed any error of law in discharging the accused it may not be out of place to examine the nature of
power exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards
in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197(1) and (2) of the Code reads
as under:
197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the
Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no
Court shall take cognizance of such offence except with the previous sanction -
(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with
the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection
with the affairs of a State, of the State Government.
* * * (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while
acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or
are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot
take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly
provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a
complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has
been committed. So far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless
sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section
not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available
and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the
expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly
clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That
is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of
jurisdiction' or 'power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a
complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed
during discharge of his official duty.â€
38. It is pertinent to notice that in a similar complaint bearing No.92 dated 21.02.2017 filed by the complainant against the petitioner and Pinky etc. the
benefit of under Section 197 Cr.P.C. has been granted by the learned Magistrate to the petitioner Devinder Singh Kadiyan and the Court refused to
take cognizance in the absence of any sanction.
39. As noticed above, the investigation has already found that the said ration card had wrongly been not entered at the concerned place in D-4 register
by a co-employee, but in spite of that the said accused had been summoned and, therefore, this Court is of the opinion that without the necessary
sanction as such the Trial Court was not justified in summoning the said accused and he is entitled to the protection under Section 197 Cr.P.C. and
there is a legal bar as such to initiate his summoning. The Apex Court in the case of 'State of Haryana Vs. Bhajan Lal' 1992 (1) SCC 335, laid down
principles as such for quashing the proceedings and held that where there is a complaint in support of evidence collected and the same did not support
the commission of offence that a case is made out against the accused and where there is a legal express bar engrafted in any of the provisions in the
continuance of the proceedings, it was liable to be quashed being abuse of the process of Court.
40. Resultantly, this Court is of the opinion that the proceedings against accused No.7 Devinder Singh Kadiyan, the petitioner in CRM-M-54078-2018
is an abuse of process of law and all proceedings are liable to be quashed qua him for the purpose of securing the ends of justice.
41. Coming to the petition filed under Section 482 Cr.P.C., i.e. CRM-M-16754-2019, whereby the proceedings are sought to be initiated under Section
340, this Court is of the opinion that the reply of the accused in defence has already been summarized above. The justification has been given that a
large number of criminal proceedings in the form of 14 complaints had been initiated by the complainant at Gurgaon. It was on that account the
averments as such that the summoning order was not in knowledge was wrongly incorporated. There is no doubt as such there is a delay in
approaching this Court after the summoning order having been passed in 2003, but the fact remains that the said petitioner was agitating for his
grievances before the Trial Court. He had filed two applications for dropping of proceedings and eventually not having faced any success, he had
approached the Revisional Court. After the revision had been dismissed on 06.08.2018, this Court had been approached immediately on 01.09.2018 by
filing CRM-M-39202-2018. A perusal of the record would go on to show that a large number of complaints and FIRs had been registered against
Sukhbir Kataria at various point of time and attempts had been made firstly to get the complaints clubbed to be heard before a common Court at
Gurgaon and also for clubbing of the complaints. The accused, thereafter, was successful for hearing some of the complaints by one Court on
13.06.2017, but clubbing was not allowed on 20.11.2017. It is, thus, apparent that he was availing his legal remedies before the Courts at Gurgaon also
and had put in appearance at the earliest after the summoning order had been passed and other co-accused appeared much later only after PO
proceedings had also been initiated against them and they had been declared as proclaimed persons on 20.04.2015 and rather the Trial Court had
noticed on 08.09.2014 that the fundamental rights of speedy trial of the accused No.6 had been violated. A reasoned order had been passed by the
Coordinate Bench by taking into account the arguments raised and the notice had been issued to the complainant, therefore, this Court does not feel it
is a fit case to initiate proceedings under Section 340 Cr.P.C., as it would not be expedient in the interest of justice and resultantly no case is made out
for issuance of such directions. CRM-M-16754-2019 filed by Om Parkash for issuance of directions under Section 340 Cr.P.C., is dismissed.
42. Accordingly, CRM-M-39202-2018 filed by Sukhbir Kataria is partly allowed to the extent that the summoning order dated 23.03.2013 is set aside
qua him. It will be open to the Trial Court as such to pass a fresh order after taking into consideration the observations made above.
43. CRM-M-54078-2018 filed by Devinder Singh Kadiyan is allowed in its entirety to secure the ends of justice and the criminal complaint dated
10.01.2013 and the summoning order dated 23.03.2013 and all subsequent proceedings arising therefrom against the said petitioner are quashed being
an abuse of process of Court.
