Delhi High Court
Sh. Jitender Singh Tomar vs State on 13 February, 2019
SHAKUN ANAND
25.02.2019 16:50
$~21
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 13th February, 2019
+ CRL.M.C. 803/2019 and Crl.M.A.3253-3254/2019
SH. JITENDER SINGH TOMAR ..... Petitioner
Through: Mr. Satish Tamta, Senior
Advocate with
Mr. Kush Sharma, Advocate
versus
STATE ..... Respondent
Through: Mr. Kewal Singh Ahuja, APP
for the State with SI Naresh, PS
Hauz Khas.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner is one of the several accused persons who stand
summoned in the criminal case (CC No.12482/2018) registered on the
basis of report ("charge sheet") under Section 173 of the Code of
Criminal Procedure, 1973 (Cr.P.C.), submitted upon conclusion of
investigation into first information report (FIR) No.605/2015 to Police
Station Hauz Khas. The FIR was registered on the compliant of
Honorary Secretary, Bar Council of Delhi alleging offences
punishable under sections 420/467/468/471 and 120-B of the Indian
Penal Code, 1860 (IPC) having been committed, certain individuals,
statedly including the petitioner herein, having got themselves
enrolled as Advocates with the Bar Council of Delhi on the basis of
forged and fabricated educational testimonials.
2. The investigation carried out is stated to have brought out
material confirming, inter alia, that the mark-sheets purportedly of the
degree course of Bachelor of Science (B.Sc) of Awadh University
besides provisional certificate No.3687 and mark-sheets of the degree
course of Law (LL.B.) of Tilka Manjhi Bhagalpur University were
submitted by the petitioner with his application for enrolment, it
leading to enrolment vide No.D-134/2011, on such basis but the same
were found to be forged and fabricated. It is pointed out by the
petitioner that in the charge sheet reference was made to a disclosure
by him about the role of one Madan Singh Chauhan as the person
from whom the said forged documents were procured against payment
of money. It is also, however, conceded that no discovery of any
further evidence on the basis of such disclosure of the petitioner could
be found against the said Madan Singh Chauhan and, consequently he
has not been sent up for prosecution.
3. The Additional Chief Metropolitan Magistrate (ACMM) before
whom the criminal case came up, after the presence of the accused
persons had been secured, considered the question of charge. By a
very detailed order dated 21st July, 2018, some of the persons sent up
for prosecution were discharged, the ACMM finding no ground to
proceed against them, charge, however, having been framed against
some others, including the petitioner. It is noted that charges were
framed pursuant to the said order dated 21.07.2018 by the ACMM on
the same date, the charge of criminal conspiracy, in which regard the
present petition has been filed, being the subject matter of third head,
it reading thus:-
"Thirdly, you agreed to forge the mark-sheets of your
graduation from Awadh University and mark-sheets and
degrees of LL.B. from Tilka Manjhi University and the
forging of these documents and getting yourself
registered by cheating Bar Council of Delhi was done in
pursuance of an agreement with other co-accused
persons and you thereby committed an offence
punishable under section 120-B IPC and within my
cognizance."
4. The petitioner challenged the above formulation of the charge
of criminal conspiracy before the court of sessions by invoking its
revisional jurisdiction. The Criminal Revision Petition No.291/2018
was disposed of by the Additional Sessions Judge, again by a very
detailed order passed on 12.10.2018, the conclusions about the
deficiency in the formulation of the charge of criminal conspiracy
being recorded (in para 90) as under:-
"90. In the opinion of this court, there is no irregularity
in the charge framed by Ld. Trial Court with regard to
conspiracy. It is already noticed above that it is not
obligatory to state in the charge the names of the fellow
conspirators. However, it is desirable. Further, the
other sections of the Code may also be mentioned in the
charge of conspiracy to indicate the objects of the
conspiracy. To that extent, the Ld. Trial Court will partly
modify the charge with regard to 120-B of IPC framed
against each accused by specifying the name of other
conspirators and specifying the name of other
conspirators and specifying the objects of conspiracy
therein i.e. conspiracy to commit various substantive
offences for which the revisionist and other co-accused
have been charged by the learned Trial Court."
5. Pursuant to the above directions, the ACMM reframed the
charge describing it as "altered charge" on 28.11.2018 which, in view
of the nature of submissions made, is noted, in extenso, the same
reading thus:-
"That on 02.02.2011 at the office of Bar Council of
Delhi, 2/6 Siri Fort, Institutional Area, Khel Gaon Marg,
New Delhi, within the jurisdiction of Police Station Hauz
Khas, you cheated Bar Council of Delhi by dishonestly
inducing it to register you as an advocate vide enrollment
No.D/134/2011 on the basis of forged mart-sheets of
graduation (B.Sc.) of Awadh University, forged
provisional certificate No.3687 and mark-sheets of LL.B.
of Tilka Manjhi Bhagalpur University Bihar and you
thereby committed an offence punishable under section
420 IPC or in the alternative committed an offence under
section 417 IPC and within my cognizance.
Secondly, on the aforesaid date and place, you
fraudulently used the aforesaid forged marks and
provisional degree as genuine documents and other
documents like reply of RTI & the original degree of
LL.B from Tilka Manjhi University, which you knew or
had reason to believe at the time of you used it, to be a
forged document and that you thereby committed an
offence punishable under section 471 IPC and within my
cognizance.
Thirdly, you entered into a criminal conspiracy
alongwith co-accused Bare Narayan, Dr. Razi Ahmed,
Dr. Rajender Prasad, Janardhan Prasad Yadav, Dinesh
Kumar Srivastava, Anil Kumar Singh, Niranjan Sharma
and Sadanand Rai and agreed to forge the mark-sheets
and degrees of LL.B. from Tilka Manjhi University and
the forging of these documents and getting yourself
registered by cheating Bar Council of Delhi, which was
done in pursuance of an agreement with other co-
accused persons for committing the offence under section
471 IPC and you thereby committed an offence
punishable under section 120-B IPC and within my
cognizance".
6. The petitioner was yet not satisfied. He took the matter to the
revisional court once again by Crl. Revision Petition No.38/2019. The
Additional Sessions Judge (ASJ) found no error, illegality or
impropriety in the altered charge and, thus, dismissed the petition by
order dated 21.01.2019.
7. The present petition under Section 482 Cr.P.C. has been filed
with the prayer for quashing or setting aside of the orders dated
12.10.2018, 28.11.2018 and 21.01.2019 of the courts below, it being
pressed only in respect of third head of the charge of criminal
conspiracy. The learned counsel for the petitioner submitted that the
charge, as now framed in the modified form (altered charge) is still
deficient, in that the name of his co-conspirator, he being Madan
Singh Chauhan, as brought out in the charge sheet, is not reflected in
the charge nor there is any reference to the date on which the criminal
conspiracy was hatched or agreed upon.
8. During the course of arguments, the counsel was pointedly
asked as to whether there is any evidence supporting the arguments of
Madan Singh Chauhan being in criminal conspiracy with the
petitioner. The counsel would only refer to the disclosure statement of
the petitioner himself. On being asked, he conceded that in absence of
any discovery pursuant to such disclosure, such disclosure would be
inadmissible. If so, the argument insisting that the name of Madan
Singh Chauhan be reflected in the charge as co-conspirator is, to say
the least, most frivolous and meaningless.
9. It is well settled that, generally speaking, the date, time or place,
where criminal conspiracy was hatched, is a matter regarding which
there can hardly be a clear evidence available for the reason criminal
conspiracies are hatched in secrecy and executed in stealth. The
counsel fairly conceded that no evidence has been brought out to fix
date, time or place when the criminal conspiracy, which is the subject
matter of this case was actually hatched or executed. In these
circumstances, going by the date of commission of the offences under
sections 420/417 and section 471 IPC, which are the subject matter of
the first and second heads of charge, it has to be assumed and inferred,
at least at this stage of the criminal process, that the criminal
conspiracy, pursuant to which the forged material came into being for
it to be used later for above mentioned purposes would have been
hatched in the period prior to or on or about 02.02.2011. The argument
that the third head of charge must also indicate the date of the
commission of the offence, technically speaking, is correct. But then,
the particulars of the charge under the preceding two heads do make
up the deficiency. Yet, in order to make the matter even more clear, it
is desirable that the third head of the charge also mentions the date
which, given the above facts and circumstances, could be by use of the
expression "prior to, on or about 02.02.2011". The ACMM is, thus,
directed to add the said expression in the third head of the altered
charge framed on 28.11.2018, after the word "thirdly" and before the
words "you entered into a criminal conspiracy".
10. With the above noted observations and directions, the petition
alongwith applications are disposed of.
R.K.GAUBA, J.
FEBRUARY 13, 2019
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