Alka Ray vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 22668 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:55972
 

 
A.F.R.
 
Judgment reserved on 08.08.2023
 
Judgment delivered on 22.08.2023
 
Court No. - 16 
 

 
Case :- APPLICATION U/S 482 No. - 7251 of 2023 
 
Applicant :- Alka Ray 
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home 
 
Counsel for Applicant :- Pranjal Krishna 
 
Counsel for Opposite Party :- G.A. 
 

 
Hon'ble Subhash Vidyarthi J. 
 
    1.

Heard the arguments of Sri Pranjal Krishna, the learned counsel for the applicant, Sri Shiv Nath Tilhari, the learned AGA-I for the State and perused the records.

2. By means of instant application filed under Section 482 Cr.P.C, the applicant has assailed validity of the order dated 28.02.2023 passed by the learned Additional Chief Judicial Magistrate Court No. 19, Barabanki, whereby her application for discharge has been rejected. The applicant has also challenged the order dated 22.06.2023 passed by the aforesaid Court framing charges against her under Sections 419, 420, 467, 468 and 471 I.P.C.

3. On 02.04.2021, a First Information Report bearing Case Crime No. 0369 of 2021 was lodged by the Assistant Regional Transport Officer in Police Station Kotwali Barabanki Under Sections 419, 420, 467, 468 and 471 IPC alleging that an ambulance bearing registration number UP41 AT 7171 was registered with the Transport Department Barabanki on 21.12.2013, in the name of the applicant, showing her address to be 56, Rafi Nagar, Barabanki, claiming that the ambulance will be used for transporting the patients of Shyam Sanjeevani Hospital and Research Centre Private Limited, National Highway 24, GT Mau. The applicant had produced a photo copy of her voter identity card showing the aforesaid address, which turned out to be false and forged as it was found that there was no house bearing No. 56 in Rafi Nagar. There is a house No. 56 in neighboring Abhay Nagar, wherein one Pradeep Mishra resides for the past several years. The F.I.R. alleges that the registration of the ambulance was done on the basis of forged documents.

4. After investigation, a charge-sheet dated 04.07./2021 has been submitted against seven accused persons, including the applicant, for commission of offences under Sections 419, 420, 467, 468, 471, 120-B, 177 and 506 I.P.C. and Section 7 of the Criminal Law (Amendment) Act, 1932. However, the applicant has challenged the order framing charges under Sections 419, 420, 467, 468, 471 I.P.C. only.

5. The applicant has approached this Court challenging the order rejecting her application for discharge, although a copy of the application has not been brought on record from which the contents of the application could be gathered.

6. In the order dated 28.02.2023, rejecting the discharge application, the learned Additional Chief Judicial Magistrate, Court No. 19, Barabanki has recorded that it has been stated in the discharge application that the FIR makes a mention of Section 55 (5) of the Motor Vehicle Act 1988 whereas the Regional Transport Officer has no authority to lodge a report in case of violation of the aforesaid provision and it contains a provision for cancellation of the registration after giving an opportunity of hearing to the registered owner of the vehicle.

7. The State has filed a counter affidavit stating that a news item was published in various newspapers, that a co-accused person Mukhtar Ansari had gone to appear before a Court in Punjab in an ambulance registered in District Barabanki. Upon seeing this, the Inspector-in-charge of Police Station Kotwali Nagar, Barabanki, sent a letter dated 01.04.2021 to the Assistant Regional Transport Officer, Barabanki, enquiring about the details of registration of the ambulance. The Regional Transport Officer sent a letter to the Sub-divisional Magistrate Nawabganj, Barabanki, informing that the ambulance was registered in the name of the applicant and as proof of her address she had submitted a copy of her voter identity card. It was found that the voter identity card submitted by the applicant for registration of the Vehicle, was forged. The application for registration was accompanied by a letter issued on a printed letterhead of Shyam Sanjeevani Hospital and Research Centre Private Limited, National Highway 24 G.T., Mau, stating that the ambulance will be used for transport of patients without any fee.

8. A copy of the statement of the applicant recorded under Section 161 Cr.P.C. has been annexed with the counter affidavit, wherein she stated that she was running Shyam Sanjeevani Hospital along with co-accused Doctor Sheshnath Rai, in a premise taken on rent from its owner Pyarey Lal Sindhi. Pyarey Lal Sindhi had sold the house to Umesh Singh in the year 2009. Umesh Singh was said to be very close to Mukhtar Ansari and he started creating pressure for vacating the house. The applicant and co-accused Sheshnath Rai went to meet co-accused Mukhtar Ansari, who was lodged in District Jail Ghazipur and Mukhtar Ansari assured that nobody will ask her to vacate the house. She had gone to meet Mukhtar Ansari in jail again on 31.05.2013 along with some other persons and in a meeting held in the jail, she was asked to arrange an Ambulance in the name of her hospital, which would be purchased from the Vidhayak Nidhi. The applicant stated that with the passage of time, she developed affinity with Mukhtar Ansari and she had tied a Rakhee on his wrist. Thereafter co-accused Mujahid, who was the representative of Mukhtar Ansari, and co-accused Raj Nath Yadav, who used to look after the office of Mukhtar Ansari, asked that an ambulance was to be taken in the name of her hospital for public service. Mukhtar Ansari himself had told it to her when she had got to meet him in jail. She also felt that the purchase of ambulance would be beneficial for her hospital. Therefore, she provided photocopies of the registration certificate of Shyam Sanjeevani Hospital and Research Centre Private Limited, income certificate, PAN card of herself and her hospital. She had also provided some blank printed letter-heads of the hospital by putting her signatures and seal on those and some blank cheques from the bank account of the hospital. After sometime, Mujahid and Raj Nath Yadav told her that the ambulance could not be purchased from Vidhayak Nidhi due to some technical problem and they said that the ambulance will be transferred in the applicant's name. Mujahid and Raj Nath Yadav had got her signatures on some more documents and thereafter the ambulance was purchased and it was retained by Mukhtar Ansari with him and the same was used by him. On 31.03.2021, the applicant came to know through TV news channels that Mukhtar Ansari had gone to attend hearing in a Court in Punjab by the ambulance registered in her name. On the same day, co-accused Anand Yadav came to her hospital and made her talk to co-accused Shahid through his mobile phone and Shahid had told her what statement she would give to the authorities in this regard.

9. Statements of several other co-accused persons and some independent witnesses recorded by the investigating officer have also been annexed with the counter affidavit. On the basis of the material collected during investigation, Sections 120-B, 177 and 506 I.P.C. and Section 7 of the Criminal Law (Amendment) Act, 1932 were added in the charge-sheet.

10. On 02.09.2021, another charge-sheet was submitted against four more persons and on 05.03.2021 a third charge-sheet has been submitted against two more persons.

11. It has been stated in the counter affidavit that on the basis of the documentary, oral and electronic evidence has collected during investigation complicity of the applicant in commission of the offences has been established. The applicant was in contact with co-accused Mukhtar Ansari since the year 2009. She was well aware about the plan of purchase of ambulance. She purchased the ambulance and applied for its registration and submitted a forged voter identity card bearing her incorrect address. The applicant had purchased the vehicle claiming that it will be used for the benefit of patients but she provided it to co-accused Mukhtar Ansari for being used in his illegal activities. The vehicle remained in control of Mukhtar Ansari and it was never used for patients. When the matter relating to illegal use of the ambulance was published in the newspapers, the applicant met co-accused Anand Yadav, which fact is evidenced by CCTV footage and she talked to co-accused Shahid through mobile phone. The material available on record reasonably connects the applicant with commission of the offences and it is established that the applicant was involved in a conspiracy with the other accused persons.

12. I have perused the material placed on the record available before the Court and considered the submissions made by the learned counsel for the parties.

13. The first submission of Sri. Pranjal Krishna, the learned Counsel for the applicant, is that the applicant is guilty of merely obtaining registration of the vehicle on the basis of a false document and consequences thereof are provided under Section 55 of the Motor Vehicle Act, 1988 as follows:

"55. Cancellation of registration.--

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(5) If a registering authority is satisfied that the registration of a motor vehicle has been obtained on the basis of documents which were, or by representation of facts which was, false in any material particular, or the engine number or the chassis number embossed thereon are different from such number entered in the certificate of registration, the registering authority shall after giving the owner an opportunity to make such representation as he may wish to make (by sending to the owner a notice by registered post acknowledgement due at his address entered in the certificate of registration), and for reasons to be recorded in writing cancel the registration."

14. The learned Counsel for the applicant has relied upon the decision in State of Arunachal Pradesh v. Ramchandra Rabidas, (2019) 10 SCC 75, wherein the Hon'ble Supreme Court was testing the validity of a directions issued by the Guahati High Court in Ramchandra Rabidas v. State of Tripura, 2008 SCC OnLine Gau 99, that road traffic offences shall be dealt with only under the provisions of the Motor Vehicles Act, 1988 ("the MV Act"), and in holding that in cases of road traffic or motor vehicle offences, prosecution under the provisions of the Penal Code, 1860 ("IPC") is without sanction of law, and recourse to the provisions of IPC would be unsustainable in law. The Hon'ble Supreme Court held that: -

"6. In our view there is no conflict between the provisions of IPC and the MV Act. Both the statutes operate in entirely different spheres. The offences provided under both the statutes are separate and distinct from each other. The penal consequences provided under both the statutes are also independent and distinct from each other. The ingredients of offences under both statutes, as discussed earlier, are different, and an offender can be tried and punished independently under both statutes. The principle that the special law should prevail over the general law, has no application in cases of prosecution of offenders in road accidents under IPC and the MV Act."

15. Sri. Pranjal Krishna has submitted that the aforesaid enunciation of law by the Hon'ble Supreme Court is limited to cases relating to road accidents only and it would not justify initiation of prosecution for offences under the I.P.C. on charges of getting a vehicle registered on a wrong address.

16. Replying to the aforesaid submissions, Sri. Shiv Nath Tilhari, the learned A.G.A.-I has submitted that where the acts committed by the accused person make out commission of an offence, lodging of an FIR cannot be said to be barred merely for the reason that some action, other than prosecution, is also provided in any other statute and the accused person has to be prosecuted for commission of the offence.

17. Section 55 of the Motor Vehicles Act does not provide for any punishment, it merely provides for cancellation of registration after giving an opportunity of hearing to the person concerned. In case the act of getting a vehicle registered on an incorrect address on the basis of forged documents, makes out commission of any offence(s) under the I.P.C. or any other penal law, the provisions of Section 55 of the Motor Vehicles Act would not create a bar against prosecution of the accused person for the offence under other statutory provisions.

18. The Hon'ble Supreme Court has categorically held in Ramchandra Rabidas (Supra) that the offences provided under I.P.C. and the Motor Vehicles Act are separate and distinct from each other and the penal consequences provided under both the statutes are also independent and distinct from each other. The ingredients of offences under both statutes are different, and an offender can be tried and punished independently under both statutes. The aforesaid principle of law is in no way limited in its application to the cases arising out of road accidents only. Therefore, I am unable to accept the first submission of the learned Counsel for the applicant.

19. The second submission of the learned Counsel for the applicant is that the applicant has been charged for commission of the offence of forgery without there being any allegation that the applicant had herself forged the voter identity card which was used for getting the vehicle registered. In support of this contention, he has relied upon the judgment in the case of Sheila Sebastian v. R. Jawaharaj, (2018) 7 SCC 581, wherein the Hon'ble Supreme Court held that "a charge of forgery cannot be imposed on a person who is not the maker of the same...For constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery."

20. In rebuttal, Sri Shiv Nath Tilhari, the learned A.G.A.-I has submitted that the applicant has not been charged for commission of the offence of forgery only, she has been charged for entering into the conspiracy for commission of various offences, including forgery. He has submitted that when a person is charged for being a part of a criminal conspiracy, it is not necessary that the person must be involved in commission of all the offences committed in furtherance of the criminal conspiracy.

21. In this case, the applicant has not been charged for committing the offence of forgery, rather she has been charged for commission of offences under Sections 419, 420, 467, 468, 471, 120-B, 177 and 506 I.P.C. and Section 7 of the Criminal Law (Amendment) Act, 1932, which include the charge for entering into a criminal conspiracy for commission of the offences alleged. However, the applicant has preferred not to challenge the order framing charges under Section 120-B, 177 and 506 I.P.C. and Section 7 of the Criminal Law (Amendment) Act, 1932 presumably for the reason that she accepts to be tried for those charges. When the applicant is being tried for committing the offence of criminal conspiracy for commission of offences under Sections 419, 420, 467, 468, 471, it is not necessary that the applicant is charged for committing those offences herself.

22. Therefore, I find no force in the aforesaid submission of the learned Counsel for the applicant.

23. Sri. Tilhari has placed before the Court the decisions in the cases of Palwinder Singh v. Balwinder Singh, (2008) 14 SCC 504, Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217, Rajbir Singh v. State of U.P., (2006) 4 SCC 51, Ghulam Hassan Beigh v. Mohd. Maqbool Magrey, (2022) 12 SCC 657, Rajeev Kourav v. Baisahab, (2020) 3 SCC 317, State of Maharashtra v. Maroti, (2023) 4 SCC 298, Bholu Ram v. State of Punjab, (2008) 9 SCC 140, State of Uttar Pradesh and another versus Akhil Sharda and others, 2022 SCC OnLine SC 820, Monica Bedi versus State of Andhra Pradesh, (2011) 1 SCC 284 and State of U.P. versus Ranjit Singh, (1999) 2 SCC 617, to emphasis upon the limited scope of scrutiny at the time of discharge and framing of charges.

24. The difference between the approach with which the Court should examine the matter in while considering an application for discharge under Section 227 Cr.P.C. and while framing charge under Section 228 of the Code has been explained by the Hon'ble Supreme Court in Amit Kapoor versus Ramesh Chander, (2012) 9 SCC 460, in the following words:--

"17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.

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30. We have already noticed that the legislature in its wisdom has used the expression "there is ground for presuming that the accused has committed an offence". This has an inbuilt element of presumption once the ingredients of an offence with reference to the allegations made are satisfied, the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste. A Bench of this Court in State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659 referred to the meaning of the word "presume" while relying upon Black's Law Dictionary. It was defined to mean "to believe or accept upon probable evidence"; "to take as proved until evidence to the contrary is forthcoming". In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment. Merely because there was a civil transaction between the parties would not by itself alter the status of the allegations constituting the criminal offence.

25. Thus the law regarding the approach to be adopted by the court while considering an application for discharge of the accused persons under Section 227 and approach while framing charges under Section 228 of the Code, is that while considering an application for discharge of the accused under Section 227 of the Code, the Court has to form a definite opinion, upon consideration of the record of the case and the documents submitted therewith, that there is not sufficient ground for proceeding against the accused. However, while framing charges, the Court is not required to form a definite opinion that the accused is guilty of committing an offence. The truth of the matter will come out when evidence is led during the trial. Once the facts and ingredients of the Section exist, the court would presume that there is ground to proceed against the accused and frame the charge accordingly and the Court would not doubt the case of the prosecution.

26. Having considered the facts of the case in light of the law laid down by the Hon'ble Supreme Court in Amit Kapoor (Supra) I am of the considered view that upon consideration of the record of the case, there is sufficient ground for proceeding against the applicant. The truth of the matter will come out when evidence is led during the trial.

27. The application under Section 482 Cr.P.C. lacks merits and the same is hereby dismissed.

(Subhash Vidyarthi, J.)

Order Date - 22.08.2023

Pradeep/-