Delhi High Court
State vs H.C. Sanjiv Malik on 19 July, 2019
$~6
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 19th July, 2019
+ Crl.M.C. 231/2016
STATE ..... Petitioner
Through: Mr. Rajesh Mahajan, ASC for
the State
versus
H.C. SANJIV MALIK ..... Respondents
Through: Mr. Naresh Kaushik, Advocate
with Mr. Puneet Ahluwalia,
Mr. Tapasvi Raj & Mr. Vibhuti
Tyagi, Advocates
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
Crl.M.A. 4788/2019 (for recalling of order dated 22.11.2018),
Crl.M.A. 4789/2019 (stay) and Crl.M.A. 4790/2019 (exemption)
1. The duty of consideration of applications for licence for
possession of arms and ammunition under the Arms Act, 1959, read
with rules framed there under, is the domain of police department, the
task having been assigned during the relevant period to Deputy
Commissioner of Police (DCP/licensing), he being assisted by
Assistant Commissioner of Police (ACP/licensing).
2. It is stated that one Mahender Gupta (first accused) had been
granted arms license, its validity, however, being restricted to territory
of Delhi only. He statedly was desirous of getting it extended for "All
India" use. The arms license of Mahender Gupta was valid upto
04.04.2005. He approached the office of DCP/ licensing with a request
for change of residential address. During scrutiny of the said
application, it was noticed that the endorsement on the said arms
license about extension of its area validity to "All India", purportedly
under the signatures of Mr. S.K. Pant, ACP/licensing, was forged.
There was no corresponding record in the said office pertaining to the
said entry dated 26.12.2002. It was found that applications had been
earlier made for such extension in 2001 and 2002 but rejected by the
government. The internal inquiry included the said Mahender Gupta
being called and questioned, this statedly bringing out the involvement
of the applicant he having been earlier posted in the licensing branch
for certain period.
3. On the complaint of DCP (Headquarters), first information
report (FIR) No.338/2004 was registered by Police Station Defence
Colony for investigation into acts of commission and omission which
constituted prima facie offences punishable under sections 471/120B
of the Indian Penal Code, 1860 (IPC). Upon conclusion of the
investigation, report (charge-sheet) under section 173 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) was submitted in the court of
Metropolitan Magistrate. The applicant, and the said Mahender Gupta,
were summoned as accused.
4. It is against the above backdrop that the Metropolitan
Magistrate considered the question of charge. By her order dated
05.03.2015, charge was found made out for offences under sections
468/471 IPC against Mahender Gupta, he having been put on trial
accordingly. However, the Metropolitan Magistrate was not satisfied
as to sufficiency of the evidence made available so as to put the
applicant on trial. She noted, inter alia, that the report of forensic
science laboratory (FSL) had not given any definitive opinion as to the
authorship of the fabricated entry. In her opinion, it was a case based
merely on disclosure statements which did not have evidentiary value.
5. The order of discharge in favour of the applicant was assailed
by the State in the court of sessions by Criminal Revision
No.195/2015. The additional sessions judge (ASJ) upheld the view
taken by the Metropolitan Magistrate, and declined to interfere,
rejecting the revisional challenge by order dated 04.08.2015, inter
alia, noting that as per the evidence the prime accused Mahender
Gupta had come in contact with the petitioner upon he being
introduced to him by Head Constable Ramesh. He also noted that the
evidence showed that the intimation about "All India" endorsement
had been communicated to the prime accused Mahender Gupta by
Head Constable Surender Tomar against whom no cognizance had
been taken by the Metropolitan Magistrate, this bringing on record
contradictory versions of Head Constable Ramesh and prosecution
witness Anil Gupta (brother of prime accused Mahender Gupta).
6. Feeling aggrieved, the State approached this court by the
petition at hand invoking the power and jurisdiction of this court under
section 482 Cr.P.C. submitting that the orders passed by the courts
below are perverse, ignoring the crucial evidence on record.
7. The petition came up for hearing on 22.11.2018 when the
applicant (respondent in the said petition) was represented by Mr.
Dhan Mohan, Advocate. The petition and the applications filed
therewith were disposed of taking note of the background facts and
submissions leading to necessary directions as under:-
"On the basis of report under Section 173 of the Code of
Criminal Procedure, 1973 (Cr.P.C) submitted upon
conclusion of investigation of first information report (FIR)
no. 338/2004 of police station Defence Colony involving
offences punishable under Sections 420/468/471/120 B IPC,
the respondent herein was summoned, along with others.
When the case reached the stage of consideration of charge,
his submissions were that there was no prosecutable
evidence showing his complicity. The Metropolitan
Magistrate accepted the said arguments and, by order dated
05.03.2015, directed that he stood discharged, charge being
framed against co-accused Mahender Gupta for offences
under Sections 468/471 IPC. The State challenged the said
order in the court of Sessions by Crl. Rev. 195/2015. But, the
said challenge was repelled as the revision petition was
dismissed by order dated 4.8.2015. Thus, the present
petition was brought before this Court under Section 482
Cr.P.C. seeking to assail the orders of the courts below, the
prime contention being that substantive evidence in the form
of statements of three witnesses namely Anil Gupta, Dinesh
Gupta and Ramesh besides the opinion of Government
Examiner of Questioning Documents (GEQD), Kolkata
confirming the forged document to be in the handwriting of
the respondent has been overlooked.
When the matter was argued before this Court on
07.08.2018, the respondent took the position that no
material in the nature of opinion of GEQD, Kolkata had
been placed before the trial court. For scrutiny of the said
submission, it was directed that the trial court record be
called for.
A copy of the trial court record has been placed
before this Court and it confirms the submission of the
respondent, as noted above, were factually not correct. The
report dated 21.02.2017 of GEQD, Kolkata, supporting the
case of the prosecution that the forgery was in the hand of
the respondent is part of the material which was before the
court of Metropolitan Magistrate. It is clear the same has
been glossed over by the revisional court as there is no
reference to it in the impugned order.
After some hearing, the counsel for the respondent,
having taken instructions, submitted that he concedes that
on the available material, including the GEQD opinion, and
the statements of the above-mentioned witnesses, charge is
made out for the offences under Sections 120 B read with
Sections 420/468/471 IPC against the respondents. He, thus,
fairly conceded that the petition may be allowed and the
impugned order may be set aside with suitable
consequential directions for follow up.
Having perused the available material including in
the above nature, this Court accepts the prayer of the
prosecution (the State) that the trial court as well as the
revisional court have fallen into error by actually not going
into the material in entirety, the order of discharge being
unjust, improper and resulting in serious miscarriage of
justice, particularly against the above backdrop that co-
accused Mahender Gupta has already faced trial and been
found guilty.
In the above facts and circumstances, the petition is
allowed. It is directed that the trial court shall frame
charges against the respondents for offences under Sections
120 B read with Sections 420/468/471 IPC and proceed
further in accordance with law.
The trial court will take up the case further in light of
the above directions, on 20th December, 2018. The
respondent is directed to present himself in person with
counsel on the said date. Needless to add, he shall furnish
fresh bail bonds for regulating his presence in the further
proceedings.
It may also be added that nothing observed here will
be treated as final expression of opinion on merits.
The petition and the applications filed therewith are
disposed of in above terms."
8. The applicant assailed the above mentioned order before the
Supreme Court by Special Leave to Appeal (Crl.) No.1403/2019
which was dismissed by order dated 15.02.2019 reading thus:-
"The High Court allowed the petition under Section
482 Cr.P.C. filed by the petitioner and reversed the order of
discharge in favour of the petitioner.
A perusal of the impugned order indicates that there
was a concession made by the counsel appearing for the
petitioner in the High Court that the petition filed under
Section 482 Cr.P.C. by the State can been allowed and
further directions may be given to the Trial Court to proceed
with the matter.
Mr. Naresh Kaushik, learned counsel appearing on
behalf of the petitioner submits that concession was made by
the counsel without instructions from the petitioner.
We are unable to accept the statement of the learned
counsel for the petitioner in view of the observation made by
the High Court in the impugned judgment. The petitioner is
at liberty to approach the High Court by filing a petition for
recall of the order on the ground that the concession was
made by his counsel without instruction.
The Special Leave Petition, is accordingly dismissed.
Pending application(s), if any, stand disposed of."
9. It is after dismissal of the special leave petition that the
applicant (respondent in main petition) moved the application
(Crl.M.A.4788/2019) at hand seeking recall of the order dated
22.11.2018, it being accompanied by two applications, i.e.,
Crl.M.A.4789/2019 (for stay) and Crl.M.A.4790/2019 (for
exemption).
10. In the application for recall of the order dated 22.11.2018, the
applicant has, inter alia, stated that Mr. Dhan Mohan, Advocate
previously representing him had not been instructed to give any such
concession as had come to be recorded pointing out that he himself
was not present in the court during the proceedings on the said date.
Submitting that Mr. Dhan Mohan Advocate has committed
processional misconduct by making such unauthorized submissions,
the new counsel engaged by him informed the court that he was in the
process of lodging a complaint against the said counsel. On
09.04.2019, the court was informed that a complaint had been made
against the previous counsel on 13.03.2019. It was, however, brought
out at the hearing that the Bar Council has not taken any action on the
said complaint.
11. The applicant does not dispute that Mr. Dhan Mohan, Advocate
had made submissions conceding that on the available material,
including the opinion of government examiner of questioned
document (GEQD), and also the statements of the witnesses, charge
was made out for offence under section 120-B read with section
420/468/471 IPC against him. His grievance is Mr. Dhan Mohan,
Advocate had not taken formal instructions from him in this regard.
12. The fact remains that when the matter was taken up on
22.11.2018, elaborate arguments were made in the course of which
statements of three crucial witnesses including Anil Gupta, Dinesh
Gupta and Ramesh were referred, this in addition to the opinion of
GEQD, Calcutta confirming the forgery.
13. In view of this court, the prayer for recall of the order dated
22.11.2018 on the specious plea that the counsel had no authority to
concede is only an attempt to seek a revisit to the issues which were
considered by the court on 22.11.2018. Such an attempt and approach
cannot be approved of.
14. The conduct of the legal practitioner is regulated by the Bar
Councils constituted in terms of the Advocates Act, 1961. The Bar
Council of India has framed detailed rules in exercise of its rule
making power under the said law. The said rules include a separate
Chapter on „Standards of Professional Conduct and Etiquettes‟. The
statutory rules declare unequivocally that an advocate "shall not
consider himself as a mere mouthpiece of the client".
15. Almost a century ago, in Emperor vs. Rajani Kanta Bose, AIR
1922 Cal 515, it was held that a lawyer is more than a "mere agent or
servant" of his client, he also being an "officer of the court" and as
such he owes the duty of "good faith", his high vocation being "to
inform the court as to the law and facts of the case and to aid it to do
justice by arriving at correct conclusions". This position has been the
consistent view of the courts over the last several decades and
reference may be made, with advantage, to the following observations
of the Supreme Court in Re: Rameshwar Prasad Goyal, Advocate,
(2014)1SCC 572:
"10. Lawyers play an important part in the administration
of justice. The profession itself requires the safeguarding of
high moral standards. As an officer of the court the
overriding duty of a lawyer is to the court, the standards of
his profession and to the public. Since the main job of a
lawyer is to assist the court in dispensing justice, the
members of the Bar cannot behave with doubtful scruples or
strive to thrive on litigation. The lawyers must remember
that they are equal partners with Judges in the
administration of justice. If the lawyers do not perform their
function properly, it would be destructive of democracy and
the rule of law. (Vide Manak Lal v. Prem Chand Singhvi,
AIR 1957 SC 425, Jamilabai Abdul Kadar v. Shankarlal
Gulabchand, (1957) 2 SCC 609: AIR 1975 SC 2202, Bar
Council of Maharashtra v. M.V. Dabholkar, (1976) 2 SCC
291 : AIR 1976 SC 242, S.P. Gupta v. Union of India, 1981
Supp SCC 87 : AIR 1982 SC 149, and Sheela Barse V. State
of Maharashtra, (1983) 2 SCC 96 : 1983 SCC (Cri) 353:
AIR 1983 SC 378."
(emphasis supplied)
16. As far back as in 1925, an Article titled „The Lawyer as an
officer of the Court‟ was published in Virginia Law Review, Vol. 11,
No. 4 (Feb. 1925) pp.263-77, lucidly setting down what is expected
from lawyer thus :-
"The duties of the lawyer to the Court spring directly
from the relation that he sustains to the Court as an officer
in the administration of justice. The law is not a mere
private calling but is a profession which has the distinction
of being an integral part of the state‟s judicial system. As
an officer of the court the lawyer is, therefore bound to
uphold the dignity and integrity of the court; to exercise at
all times respect for the Court in both words and actions;
to present all matters relating to his client‟s case openly,
being careful to avoid any attempt to exert private
influence upon either the judge or the jury; and to be frank
and candid in all dealings with the Court, "using no deceit,
imposition or evasion", as by misreciting witnesses or
misquoting precedents. "It must always be understood",
says Mr. Christian Doerfler, in an address before the
Milwaukee County Bar Association, in December, 1911,
"that the profession of law is instituted among men for the
purpose of aiding the administration of justice. A proper
administration of justice does not mean that a lawyer
should succeed in winning a lawsuit. It means that he
should properly bring to the attention of the Court
everything by way of fact and law that is available and
legitimate for the purpose of properly presenting his
client‟s case.
His duty as far as his client, is concerned is simply to
legitimately present his side of the case. His duty as far as
the public is concerned and as far as he is an officer of the
Court is to aid and assist in the administration of justice.
(emphasis supplied)
17. The afore extracted views were quoted with approval by
Justice Vivian Bose, J. in „G‟ a Senior Advocate of the Supreme
Court, in re: AIR 1954 SC 557.
18. An earlier decision of the Supreme Court, reported as Mohit
Chowdhary, Advocate, (2017) 16 SCC 78, had quoted the articulation
of the relevant principles on the subject as expounded by Crampton, J.
in R. v. O‟ Connell, 7 Irish Law Reports 313 thus:
"The advocate is a representative but not a delegate. He
gives to his client the benefit of his learning, his talents
and his judgment; but all through he never forgets what he
owes to himself and to others. He will not knowing
misstate the law, he will not willfully misstate the facts,
though it be to gain the case for his client. He will ever
bear in mind that if he be an advocate of an individual and
retained and remunerated often inadequately, for valuable
services, yet he a prior and perpetual retainer on behalf of
truth and justice and there is no Crown or other licenses
which in any case or for any party or purpose can
discharge him from that primary and paramount retainer."
(emphasis supplied)
19. It is apposite to also refer to the following views expressed by
Hon. Marilyn Warren AC in a speech delivered on the subject "The
duty owed to the Court - Sometimes Forgotten" at the Judicial
Conference of Australia Colloquium, Melbourne on 09.10.2009
(accessed at www.austlii.edu.au):-
"The lawyer‟s duty to the court is an incident of the
lawyer‟s duty to the proper administration of justice. This
duty arises as a results of the position of the legal
practitioner as an officer of the court and an integral
participant in the administration of justice. The
practitioner‟s role is not merely to push his or her client‟s
interests in the adversarial process, rather the practitioner
has a duty to „assist the court in the doing of justice
accordance to law.
xxx
The conflict between the duty to the court and to the
client had been described by Mason CJ as the „peculiar
feature of counsel‟s responsibility‟. The Chief Justice also
observed that the duties are not merely in competition.
They do not call for a balancing act. They actually come
into collision and demand that, on occasion, a practitioner
„act in a variety of ways to the possible disadvantage of his
client ... the duty to the court is paramount even if the
client gives instructions to the contarary."
(emphasis supplied)
20. The advocates are an integral part of the judicial system in our
country. They not only provide legal aid and assistance to the litigants
and parties involved in a lis but also assist the court in reaching just
decisions and dispensing fair justice. In the adjudicatory process, it is
through them that the version of each side is presented and supported
by the evidence that may be adduced before the Court. In an
adversarial procedure, the Court is a neutral empire expected to
adjudicate at the conclusion of proceedings, aided and assisted by the
counsel for the parties. In this scheme of things, the advocate on each
side presents his facts, as instructed by the party, which has engaged
him or her. But this does not mean that he is only a spokesperson, or
mouthpiece, for the party he represents before the Court. There is no
employer - employee relationship between the counsel and the litigant.
The status of the counsel goes beyond that of a mere agent of the
litigant. He is first and foremost an officer of the Court. He is in
service, not of the party, but in the cause of justice, the pursuit of
which goal is the prime objective of the exercise that is undertaken by
the judicial organ.
21. Whilst there can be no two opinions about the proposition that
an advocate must truly and faithfully present the facts which have
been brought to his notice by the party that has engaged him, he
having no authority in law to twist facts or to create fictional facts, not
the least to concede to the existence of facts which are disputed by the
party which has instructed him to appear on its behalf in the Court.
But this discipline does not bind the advocate in the matters wherein
he is called upon, by his duty to the Court, to render aid on questions
of law. He is expected by the Court to be fair in assisting and reaching
correct conclusions as to the application of the correct law.
22. It is a matter of usual practice and experience in the courts that
the counsel assisting in the judicial process often fairly concede to the
correctness of the statements of facts, or admit existence of certain
facts which may turn out to be detrimental to the cause espoused by
their client. It is often also the scene in the courts that the counsel give
oral undertakings on behalf of their clients, while making submissions
"at bar" adding that they have been "instructed" to give such
undertaking. The courts repose trust and faith in the word of the
counsel who enjoys the status of an officer of the court and act upon
such concessions, admissions, undertakings etc while taking decisions
or passing judicial directives. The edifice of the adjudicatory system
in the courts rests on the integrity of the word of the counsel because it
is the hallmark of the institution, also for the added reason that under
the contract between the counsel and the party, as represented in the
vakalatnama filed in the Court, the latter usually confirms the
understanding that he would "ratify" what is presented on its behalf in
the court by the former (unless there is explicit instruction to the
contrary), with which the litigant is bound.
23. Pertinent to quote here the following observations of the
Supreme Court in Himachal Pradesh Scheduled Tribes Employees
Federation and Anr. Vs. Himachal Pradesh Samanaya Varg
Karamchari Kalayan Mahasangh and Ors., (2013) 10 SCC 308 :-
"31. When a statement is made before this Court it is, as a
matter of course, assumed that it is made sincerely and is not
an effort to overreach the Court. Numerous matters even
involving momentous questions of law are very often disposed
of by this Court on the basis of the statement made by the
learned counsel for the parties. The statement is accepted as it
is assumed without doubt, to be honest, sincere, truthful, solemn
and in the interest of justice. The statement by the counsel is not
expected to be flippant, mischievous, misleading and certainly
not false. This confidence in the statements made by the learned
counsel is founded on the assumption that the counsel is aware
that he is an officer of the Court."
24. A trend unfortunately seems to be growing and developing in
the courts where, having suffered some order possibly on account of
concession, admission or undertaking given or tendered on its behalf
by the counsel in the court, the party in question makes an about-turn
and seeks to wriggle out of its effect by taking the position either that
the counsel had acted unauthorisedly or without instructions or that he
had colluded with the opponent to present twisted facts. The result of
such endeavour only adds to the complexity of the litigation, giving
rise to fresh round of proceedings before the court thereby burdening
it even more.
25. It must be clarified here that this Court does not mean to say
that there can never be a situation where a counsel may have
committed misconduct by presenting wrong facts with some oblique
motive. There have been numerous instances of this kind though the
lament is that the responses of the disciplinary body vis-à-vis the
lawyers in such cases have appeared to be rather slow. But then, the
dishonest tendencies to put blame on the previous counsel by wrongly
accusing him of having acted unauthorisedly only to force an
otherwise impermissible "review" of an adverse order must be curbed.
26. It is trite that a judicial order, particularly representing the
record of proceedings and the correctness of facts incorporated therein
with regard to what transpired in the court, cannot generally be
questioned. It must be acknowledged, however, that there is no
guarantee that there can never be an error in incorporation of facts in
the court proceedings. The possibility of wrong notation of facts
creeping in the court proceedings does exist. But then, the
jurisprudence in this regard which has evolved over the years insists
that the error be brought to the notice of the court accuracy of the
proceedings recorded by which are questioned, such request expected
to be made at the earliest opportune moment of time.
27. In the case at hand, mercifully, the applicant (respondent in the
main petition) does not dispute that the counsel engaged by him earlier
had given the concession before this Court that the charge for the
offences mentioned earlier was made out on the material which had
been presented by the investigating agency. His contention is that he
had not given any authority to the counsel to make such a concession.
This is where the application for recall is unacceptable. The previous
counsel is not accused of having made any wrong concession on facts.
He had only conceded that charge was made out for the offences
mentioned earlier on the basis of evidence which had been brought
before the court of magistrate. Such concession was not a concession
of wrong facts. It was a concession made on a point of law. While
making such concession, the counsel was assisting as an officer of the
court. He was only discharging his responsibility to the court so that it
applied the correct legal principles. Such concession was not
contingent upon "instructions" or "authorization".
28. Be that as it may, since the matter was virtually re-argued, it
needs to be observed here that notwithstanding the concession given
by his previously engaged counsel, the result of the petition as directed
in the order dated 22.11.2018 cannot be different.
29. In the present proceedings, it is the consideration of the case by
the criminal court at the stage of charge which is brought in question.
The principles to be borne in mind in this regard are well settled and
reference may be made conveniently to the following observations of
the Supreme Court in Sajjan Kumar vs. CBI, (2010) 9 SCC 368,
wherein law on the subject of charge was summarized thus:-
"21. On consideration of the authorities about the scope of
Sections 227 and 228 of the Code, the following principles
emerge:
(i) The Judge while considering the question of framing the
charges under Section 227 CrPC has the undoubted power
to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made out. The test to determine prima
facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose
grave suspicion against the accused which has not been
properly explained, the court will be fully justified in
framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a
mouthpiece of the prosecution but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the court, any
basic infirmities, etc. However, at this stage, there cannot
be a roving enquiry into the pros and cons of the matter
and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court
could form an opinion that the accused might have
committed offence, it can frame the charge, though for
conviction the conclusion is required to be proved beyond
reasonable doubt that the accused has committed the
offence.
(v) At the time of framing of the charges, the probative
value of the material on record cannot be gone into but
before framing a charge the court must apply its judicial
mind on the material placed on record and must be
satisfied that the commission of offence by the accused was
possible.
(vi) At the stage of Sections 227 and 228, the court is
required to evaluate the material and documents on record
with a view to find out if the facts emerging therefrom
taken at their face value disclose the existence of all the
ingredients constituting the alleged offence. For this
limited purpose, sift the evidence as it cannot be expected
even at that initial stage to accept all that the prosecution
states as gospel truth even if it is opposed to common sense
or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the
trial Judge will be empowered to discharge the accused
and at this stage, he is not to see whether the trial will end
in conviction or acquittal."
(emphasis supplied)
30. The investigation has brought out evidence showing that during
the questioning the prime accused Mahender Gupta (who, it is stated,
has already been convicted) had mentioned the name of one Anil
Kumar, an acquaintance, through whose contact he (Mahender Gupta)
had came to be in touch with the applicant. In his statement under
section 161 Cr.P.C. Anil Gupta had disclosed that Head Constable
Ramesh was well known to him and, to his knowledge, worked in the
licensing branch in the past. As per his version, it was at the instance
of Head Constable Ramesh that the license was handed over by the
prime accused (Mahender Gupta) to the applicant for securing the
endorsement through his liaison with Head Constable Surender Tomar
who was working in the said branch at the relevant point of time. This
version finds confirmation in the statement under section 161 Cr.P.C.
of Dinesh Gupta (brother of Mahender Gupta) and also in the
statement of Head Constable Ramesh. In fact, Head Constable
Ramesh would go to the extent of saying that the applicant had told
him 2-3 days after the handing over of the license to him that the same
had been turned into "All India" license. The statement of Anil Gupta
further reveals that the applicant himself had come to his shop to hand
over the license with "All India" endorsement.
31. From the above evidence gathered during the investigation the
facts which stand out against the applicant are that though he himself
was not posted in the licensing branch, he (having been earlier posted
there) was (even otherwise) acquainted with Head Constable Surender
Tomar. It is he (the applicant) who had collected the arms license for
the extension of area validity and it is he who had returned the same
with endorsement of area validity ("All India") added thereupon. The
evidence also clearly shows that the endorsement in question was
forged and fabricated. It may be that the allegation of the applicant
being the author of the forgery is based primarily on opinion of
GEQD. But then, the endorsement was an act of forgery rendering the
document in question a forged document is part of the gravamen based
on substantive material.
32. The arms licence secured earlier by prime accused (Mahender
Gupta) was valid only for territory of Delhi. The false endorsement
showing it to be valid for "All India" renders it forged and fabricated
document. Prima facie, the intent of the licence holder would be to use
the said document by falsely representing to those who may be
concerned that the document was valid outside Delhi, knowing full
well that this was not the factual position. The endorsement on the
document, prima facie, came to be made when it was in the possession
of the applicant (respondent in main petition). If the prosecution is
able to prove the above-mentioned facts, it would be his onus to
explain as to in what circumstances the false endorsement on the
license came to be made. From the above, a grave suspicion arises as
to existence of criminal conspiracy and commission of above
mentioned offences and he being a party thereto.
33. From the above facts, and in the circumstances, the involvement
of the applicant (respondent in main petition) in the criminal
conspiracy punishable under second 120-B IPC for commission of
offences under sections 420/468/471 IPC is prima facie brought out.
Thus, there is no good ground as to why the conclusion and directions
in the order dated 22.11.2018 be recalled. The contentions raised to
seek reconsideration are unacceptable and the applications at hand are
dismissed with costs of Rs.50,000/-, to be deposited with concerned
District Legal Services Authority.
34. The trial court will ensure due compliance with the directions in
the order dated 22.11.2018 and also regarding deposit of costs.
35. The trial court record be returned with a copy of this order.
R.K.GAUBA, J.
JULY 19, 2019
vk
