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Anil Kapoor Vs. Finance-cum-health Secretary, Chandigarh Administration and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1974CriLJ862
AppellantAnil Kapoor
RespondentFinance-cum-health Secretary, Chandigarh Administration and anr.
Excerpt:
.....went up in revision to the learned sessions judge, chandigarh, but without success, and that is why he has come up in revision to this court. this contention, in my opinion, is well-founded. in this context, the word 'presuming' in section 254 clearly envisages the framing of a charge against the accused only if the evidence before the magistrate is sufficient to warrant a conviction. in my opinion, the answer to that question is clearly in the negative. petitioner raise a strong suspicion that it was he who had made that application and had appeared for the consequent interview, but suspicion cannot take the place of proof which is so far lacking......for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.200. using as true such declaration knowing it to be false.--whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if 'he gave false evidence.explanation. -- a declaration which is inadmissible merely upon the ground of some informality is a declaration within the meaning of sections 199 and 200.the first contention of learned counsel for the petitioner is that the declaration contained in affidavit (exhibit pc/1) is not of the type mentioned in sections 199 and 200, indian penal code, i.e., it is not a declaration which any court or public servant or other person is.....
Judgment:
ORDER

A.D. Koshal, J.

1. This is a petition for revision of the order dated the 10th of September, 1971, of the Chief Judicial Magistrate, Chandigarh, framing a charge under Sections 199, 200 and 182 of the Indian Penal Code against the petitioner in a case arising from a complaint filed by the two respondents.

2. Certain facts are not in dispute and may be shortly stated. In the month of June, 1969, the Director, Health Services Chandigarh (Respondent No. 2) invited applications through an advertisement from eligible candidates for admission to the M.B.B.S. Course against seats reserved by the Government for persons residing in the Union Territory of Chandigarh in various Medical Colleges of other States. A number of conditions were prescribed for eligibility and one of them was that the candidate should not have been eligible nor should have applied for admission to a medical college in Punjab or Haryana and that a declaration to that effect was appended to his application, in response to the advertisement, the petitioner sent his application dated 26th June, 1969 (Exhibit PC) to respondent No. 2 and thereto appended the requisite certificates, including an affidavit (Exhibit PC/1) attested by an Executive Magistrate of the 1st Class of Chandigarh. The affidavit stated:

That I was not eligible for admission to M.B.B.S. Course in any Medical College in the country including Punjab and Haryana States and has (have?) thus not sought admission in any Medical College in the country.

The application of the petitioner was duly considered and he was selected for admission to the Municipal Medical College, Ahmedabad, against one of the seats reserved for the Union Territory of Chandigarh.

3. The case for the prosecution may now be set out and it is this. Having been informed that the declaration made in affidavit (Exhibit PC/1) was false, the Finance-cum-Health Secretary, Chandigarh Administration (complainant-respondent No. 1) initiated an enquiry into the matter and the same revealed that before making the application above-mentioned the petitioner had submitted an application dated 21st of June, 1969 (assigned mark ('A') by the learned Magistrate for identification) to the Principal, Medical College, Amritsar, seeking admission to the M.B.B.S. Course in that College and had appended to the application last-mentioned the following documents:--

(a) Attested copies of various certificates;

(b) A certificate issued by the Deputy Commissioner, Kapurthala that the petitioner was domiciled in the State of Punjab;

(c) Three photographs of the petitioner;

(d) self-addressed envelope (which has been marked by the learned Magistrate for identification as A/4).

The enquiry further disclosed that the petitioner actually appeared on the 5th of July, 1969, before the Amritsar Medical College authorities for interview in connection with his admission to that institution. These facts clearly proved that the declaration made in affidavit Exhibit PC/1 was false and that the petitioner had committed offences under Sections 182, 199 and 200 of the Indian Penal Code.

4. Before the framing of the charge four witnesses were examined by the learned Magistrate. Dr. Yudhvir Sachdeva (P. W. (1) was the Principal of the Medical College, Amritsar, during the relevant period of time. He deposed that application marked 'A' purporting to be that of the petitioner was received along with other applications for admission to the M.B.B.S. Course of his. College and that the applicant was interviewed in that connection by the College authorities on the 4th or 5th of July, 1969.

Shri Joginder Singh (P. W. 2) served as the Finance-cum-Health Secretary, Union, Territory, Chandigarh from May, 1969 to September, 1970, and testified to the correctness of the facts detailed in para 2 of this judgment. Krishan Lal (P. W. 3), an Assistant in the Estate Office, Chandigarh, identified the-petitioner when the latter swore affidavit Exhibit PC/1. Shri G. P. Sharma, Assistant Director, Forensic Science Laboratory, Chandigarh (P. W. 4) examined various documents and came to the conclusion that the address on envelope marked A/4 and various entries in application Exhibit PC revealed features; pointing to common authorship, but added that 'a definite opinion was not possible for want of adequate comparison material'.

5. After the evidence detailed above had been recorded by the learned Magistrate, it was urged before him on behalf of the petitioner that no case of the commission of offences under Sections 199 and 200, Indian Penal Code, was at all made out against the petitioner, even if the allegations made by the complainants were taken at their face value and that the evidence produced before the learned Magistrate was insufficient to warrant a conviction for an offence under Section 182, Indian Penal Code. The contention did not find favour with the learned Magistrate who framed a charge against the petitioner in respect of offences under all the three sections just above-mentioned. The petitioner went up in revision to the learned Sessions Judge, Chandigarh, but without success, and that is why he has come up in revision to this Court.

6. The contentions raised before the two Courts below on behalf of the petitioner have been reiterated before me and I find force therein. For facility of reference sections 199 and 200 of the Indian Penal Code are reproduced below:

199. False statement made in declaration which is by law receivable as evidence.

Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.

200. Using as true such declaration knowing it to be false.--

Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if 'he gave false evidence.Explanation. -- A declaration which is inadmissible merely upon the ground of some informality is a declaration within the meaning of Sections 199 and 200.

The first contention of learned Counsel for the petitioner is that the declaration contained in affidavit (Exhibit PC/1) is not of the type mentioned in Sections 199 and 200, Indian Penal Code, i.e., it is not a declaration which any court or public servant or other person is bound or authorized by law to receive as evidence of any fact. I asked Mr. Anand Swaroop to point out the existence of any such law in relation to that declaration and he frankly conceded that he could not point out any and that the petitioner could not be said to have committed any offence falling under Section 199 or Section 200 of the Indian Penal Code even if that declaration was false to the petitioner's knowledge. In this view of the matter, I accept the contention raised on behalf of the petitioner and hold that the charge framed against the petitioner under the two sections, just above-mentioned, cannot be sustained.

7. Section 182 of the Indian Penal Code is quoted below:

182. False information with intent to cause public servant to use his lawful power to the injury of another person.

Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, .such public servant--

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person.

shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both ' Counsel for the parties agree that if the declaration contained in Exhibit PC/1 was false to the petitioner's knowledge he would be guilty of the offence mentioned in this section, because he intended thereby to cause a public servant, viz., respondent No. 2, to do or omit something which the latter ought not to do or omit if the true state of facts was known to him, Mr. Sachdev contends, however, that no charge under this section either could be framed against the petitioner inasmuch as the evidence led before the learned Magistrate did not make out against the petitioner any case which, if unreputted, would warrant his conviction. This contention, in my opinion, is well-founded. Let me first examine its legal aspect. Sections 253 and 254 of the Code of Criminal Procedure may be set out here with advantage:--

253. Discharge of accused.--

(1) If, upon taking all the evidence referred to in Section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds the no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

254. Charge to be framed when offence appears proved.

If, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

According to Mr. Anand Swaroop, the word 'presuming' in Section 254 indicates that evidence falling short of proof of the commission of offence is sufficient for the framing of the charge against the accused concerned, but I do not think that the word can be so interpreted in the context in which it occurs. The two sections are supplemental to each other and a harmonious construction must be placed on them. Section 253 states in categorical terms that the Magistrate is bound to discharge the accused if no case is made out against the latter which, if unrebutted, would warrant his conviction. In other words, if the evidence produced, as it stands, is not sufficient for a conviction, the Magistrate is duty-bound to discharge the accused. In this context, the word 'presuming' in Section 254 clearly envisages the framing of a charge against the accused only if the evidence before the Magistrate is sufficient to warrant a conviction. In advancing an argument to the contrary, Mr. Anand Swa-roop has said that before the charge the prosecution is to make out only 'a prima facie case' as held by their Lordships of the Supreme Court in Abhey Dass V.S. Gurdial Singh : 1971CriLJ691 , and that 'a prima facie case' does not mean a case of the type envisaged by Section 253. The first part of his argument is unexceptionable, but I cannot agree with the second part of it. What is a prima faciecase According to Webster's Third Inter-j national Dictionary (1961 Edition), 'prima facie case' means a case established by 'primaifacie evidence' which in turn means 'evi-Ideuce sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted'. It is, thus, apparent that 'a prima facie case' is nothing more or less than a case of the type mentioned in Section 253. Nothing contained in the judgment of their Lordships cited above contains even a hint that the phrase 'prima facie case' carries even a slightly different meaning.

8. The next question which arises for determination is as to whether the evidence recorded by the learned Magistrate made out against the petitioner a case which, if unrebutted, would warrant his conviction. In my opinion, the answer to that question is clearly in the negative. The following facts are established from that evidence:--

(a) The Amritsar Medical College authorities received an application purporting to have been made and signed by the petitioner but which contained no writing or signature in his hand.

(b) That application was accompanied by copies of certificates pertaining to the petitioner and his three photographs.

(c) The address on envelope marked A/4 appeared to be in the same hand which made the entries in application Exhibit PC but that is not certain.

(d) A person claiming to be the petitioner appeared for interview before the Amritsar Medical College Authorities seeking admission to the M.B.B.S. Course thereof.

These facts constitute circumstantial evidence only, and before they can be held to be sufficient for a conviction of the petitioner, they must be incompatible with the hypothesis that some person other than the petitioner had applied in his name to the Amritsar Medical College and had tried to seek admission to the M.B.B.S. Course thereof. It is true that the evidence regarding the address on envelope marked 'A/4' and the fact that the photographs appended to application marked 'A' are those of the. petitioner raise a strong suspicion that it was he who had made that application and had appeared for the consequent interview, but suspicion cannot take the place of proof which is so far lacking. The charge framed by the learned Magistrate under Section 182 of the Indian Penal Code, is also, therefore, held to be unsustainable.

9. Although the charge has to be quashed in its entirely for the reasons stated above, I am of the opinion that it is a fit case in which the prosecution should be given an opportunity of placing before the learned Magistrate such further evidence as they may have in support of their case but only in so far as the offence under Section 182 of the Indian Penal Code is concerned. Accordingly, I accept the petition, quash the charge and remand the case to the learned Magistrate for further enquiry. He shall record such evidence in relation to the commission of an offence under Section 182 of the Indian Penal Code as the prosecution may produce and weigh that evidence in order to find out if a case which, if unrebutted, would warrant a conviction, is made out against the petitioner, in which event alone shall a charge be framed against him and his trial held. The personal attendance of the petitioner having been dispensed with by the learned Magistrate, counsel for the parties are directed to appear in his Court on the 3rd of September, 1973.


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