Dr. Virendra Kumar Gaur vs The State Of Madhya Pradesh
2021 Latest Caselaw 1182 MP

   1      THE HIGH COURT OF MADHYA PRADESH
                     M.Cr.C. No.16495/2021
       Dr. Virendra Kumar Gaur Vs. State of M.P. and others

Gwalior, Dated:1/04/2021

       Shri Jitendra Kumar Sharma, Advocate for applicant.

       Shri Ravi Ballabh Tripathi, Panel Lawyer for respondent

no.1/State.

Shri P. Rai, Advocate for complainant.

This application under Section 482 of Cr.P.C. has been filed

seeking the following reliefs:-

"It is, therefore, most respectfully prayed that allowing the present petition the impugned order dated 27.3.2018 passed in M.Cr.C.

No.9375/2017 contained in Annexure - P/1 so far as relates to the directions issued by this Hon'ble Court to take departmental action against the petitioner and action under criminal law, may kindly be recalled, in the interest of justice."

According to the prosecution story, one offence under Section

307 of I.P.C. was registered against one Ragini Pandey and her

husband Dharmendra Pandey. Ragini Pandey, filed an application for

grant of anticipatory bail, which was registered as M.Cr.C. No.7358

of 2017. Along with the said application, a medical certificate, given

by the applicant was also filed, to show that Ragini Pandey, was not

present at the spot, but She was hospitalized in Govt. Hospital,

Dabra, Distt. Gwalior.

Ragini Pandey was granted anticipatory bail by this Court by

order dated 10-7-2017 passed in M.Cr.C. No.7358 of 2017.

Thereafter, the respondent no.2, filed an application for 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

cancellation of order of anticipatory bail on the ground that Ragini

Pandey had filed a forged Medical Certificate. The said application

was registered as M.Cr.C. No.9375 of 2017.

The State filed its reply in M.Cr.C. No.9375 of 2017 and

submitted that after due enquiry, it has come to a conclusion that the

medical certificate issued by the applicant was a forged document

and Ragini Pandey was neither admitted in the hospital, nor was

treated.

Relying on the report submitted by the State, this Court by

order dated 27-3-2018 passed in M.Cr.C. No.9375/2017, cancelled

the anticipatory bail which was granted to Ragini Pandey.

Ragini Pandey, preferred S.L.P.(Cri) No.4986/2018 of 2018,

which was dismissed by the Supreme Court by order dated 12-6-2018

and 7 days time was granted to Ragini Pandey to surrender. It is not

out of place to mention here that Ragini Pandey has not surrendered

so far.

Be that as it may.

The police registered the F.I.R. in crime No.101/2018 for

offence under Sections 420, 465, 466, 468 and 120-B of IPC, for

issuing forged Medical certificate.

The applicant has been arrested and had filed M.Cr.C.

No.11166 of 2021 for grant of bail, which has been dismissed by a 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

detailed order passed by this Court, today itself.

Seeking the relief(s) as mentioned above, it is submitted by the

Counsel for the applicant, that this Court in para 36 of order dated

27-3-2018, passed in M.Cr.C. No.9375 of 2017, has considered the

submissions made by the Public Prosecutor and had observed, that

"This Court hopes and believes that the undertaking given by the

Public Prosecutor will be honored by the Department in its letter and

spirit." It is submitted that such an observation was made without

giving any opportunity of hearing to the applicant, therefore, the

aforesaid observation is liable to be recalled. It is further submitted

that the Supreme Court in the case of State Represented by

Inspector of Police Vs. M. Murugeson and another reported in

2020 (2) MPLC 15 (S.C.), has held that after the application filed

under Section 439 of Cr.P.C. is decided, then the jurisdiction of the

High Court comes to an end, and any further observation is

unwarranted. It is submitted that accordingly, the Court should not

have made any observation in para 36 of the order dated 27-3-2018

passed in M.Cr.C. No.9375 of 2017.

Per contra, the application is vehemently opposed by the

Counsel for the State as well as complainant. It is submitted by the

Counsel for the State, that once, it was found that a forged medical

certificate was issued by the applicant, and the said medical 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

certificate was filed in the judicial proceedings, then this Court was

right in making observation in para 36 of the order dated 27-3-2018.

The counsel for the complainant submitted that in fact the

applicant is filing repeated applications under Section 482 of Cr.P.C.

for similar relief. It is submitted that earlier, the applicant had filed

M.Cr.C. No.48280 of 2018 for quashment of F.I.R. which was

withdrawn after arguing for some time. Thereafter, the applicant filed

M.Cr.C. No.21485 of 2019 for recall of observation made in para 36

of order dated 27-3-2018 passed in M.Cr.C. No.9375 of 2017, which

was also withdrawn after arguments. The applicant has suppressed

the fact of withdrawal of above mentioned applications filed under

Section 482 of Cr.P.C. Thus, it is clear that the applicant is not only

involved in preparing forged medical certificate, but he has also

played fraud on this Court by suppressing the fact of filing similar

applications in the past.

Heard the learned Counsel for the parties.

The 1st contention of the applicant is that before making any

observation in para 36 of order dated 27-3-2018, this Court should

have given an opportunity of hearing.

Considered the submission.

In M.Cr.C. No.9375/2017, the State had filed a report to the

effect that the medical certificate issued by the applicant was a forged 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

one. It is not out of place here to mention that the police, before

arriving at such a conclusion, had recorded the statement of the

applicant also.

Be that as it may.

The pivotal question for consideration is that whether any

direction was given by this Court and whether the applicant was

required to be heard before the observation made in para 36 of order

dated 27-3-2018?

Para 36 of Order dated 27-3-2018 passed in M.Cr.C. No.9375

of 2017 reads as under :

"36. The Public Prosecutor, has submitted that in view of the findings given by the police as well as the evidence collected by the Police, a strict departmental action as well as under Criminal Law, shall be taken against Dr. Virendra Gaud and other co-accused person. This Court hopes and believes that the undertaking given by the Public Prosecutor will be honored by the Department in its letter and spirit."

It is submitted by the Counsel for the complainant, that in fact,

the department did not initiate any departmental enquiry, but on the

contrary, gave charge of the post of Specialist to the applicant.

The Counsel for the complainant has filed Document

No.4179/2021 to produce the order dated 4/10/2018 issued by the

Deputy Director (Administration), Secretariat Health Services, M.P.,

Bhopal, by which the applicant has been given the charge of the post

of Specialist. It is not out of place to mention here that much prior to 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

issuance of this order, the CMHO, Gwalior by its letter dated

3/7/2018 had already informed the Health Commissioner, Secretariat,

Health Services, M.P., Bhopal for conducting suitable departmental

enquiry against the applicant for issuing forged medical certificate on

the basis of which Smt. Ragini Pandey had succeeded in getting the

anticipatory bail. In spite of that, the applicant was given the charge

of post of Specialist. Further, it is not the case of the applicant that he

is facing any departmental enquiry on the charges of issuing forged

Medical Certificate. Therefore, this Court is of the considered

opinion that the "hope and belief" expressed by this Court in

paragraph 36 of the order dated 27/3/2018 passed in M.Cr.C.

No.9375/2017 had not prejudiced or influenced the authorities at all.

The next question for consideration is that whether, the

applicant was entitled for any hearing before observation made in

para 36 of order dated 27-3-2018 ?

It is a case, where a forged medical certificate was issued, and

the said medical certificate was filed in a judicial proceeding, and

Ragini Pandey, succeeded in getting an order of anticipatory bail.

While deciding the application for cancellation of anticipatory bail,

this Court was required to decide as to whether, Ragini Pandey had

filed any forged medical certificate or not? This Court after relying

upon the report submitted by the State, came to a conclusion, that a 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

forged document was filed in the judicial proceedings.

It is well established principle of law that for exercising power

under Section 340 of Cr.P.C., preliminary enquiry is not mandatory,

and if the Court forms a prima facie opinion on the basis of material

available on record, then the power under Section 340 of Cr.P.C. can

be exercised. The Supreme Court in the case of State (NCT of Delhi)

Vs. Pankay Chaudhary reported in (2019) 11 SCC 575 has held as

under :

49. There are two preconditions for initiating proceedings under Section 340 CrPC:

(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 CrPC, and

(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.

50. Observing that the court has to be satisfied as to the prima facie case for a complaint for the purpose of inquiry into an offence under Section 195(1)(b) CrPC, this Court in Amarsang Nathaji v. Hardik Harshadbhai Patel held as under: (SCC pp. 117-18, paras 6-8) "6. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as "IPC"); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically 8 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

referred to in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. v. Union of India.) The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.

7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra.)

8. In Iqbal Singh Marwah v. Meenakshi Marwah, a Constitution Bench of this Court has gone into the scope of Section 340 CrPC. Para 23 deals with the relevant consideration: (SCC pp. 386-87) '23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)

(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious 9 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint.' "

The same principle was reiterated in Chintamani Malviya v. High Court of M.P.

In the given facts and circumstances of the case, this Court

could have exercised its powers under Section 340 of Cr.P.C., but

even then left it to the wisdom of the State. When a forged document

is filed in a judicial proceeding, then the Court is not expected to

close its eyes and sit idle, otherwise, silence on the part of the Court,

would encourage unscrupulous persons to prepare and file forged

documents in the Court. Under these circumstances, it cannot be said

that this Court was not right in considering the submissions made by

the Public Prosecutor. Further, it has already been observed, that in

spite of the submission made by the Public Prosecutor, the State

Authorities gave charge of the post of Specialist to the applicant,

which clearly shows that the observation made in para 36 of the order

dated 27-3-2018 has not influenced or prejudiced the

authorities/superior officers of the applicant.

So far as the judgment passed by the Supreme Court in the case 10 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

of M. Murugeson (supra) is concerned, it is distinguishable on

facts. In that case, the question for consideration before the High

Court was as to whether the accused is entitled for bail or not. Under

that circumstance, the Supreme Court had come to a conclusion that

after deciding the bail application, the jurisdiction of the High Court

had come to an end, whereas in the present case, this Court was not

dealing with the bail application of any accused, but was dealing with

an application for cancellation of bail granted to one Smt. Ragini

Pandey on the ground that it has been obtained by placing reliance on

a forged medical certificate issued by the applicant. The solitary

ground for cancellation of bail was filing of forged medical

certificate, therefore, for deciding the application for cancellation of

bail, this Court was under bounden duty to decide as to whether the

medical certificate issued by the applicant was a forged one or not.

After coming to a conclusion, which was based on the report

submitted by the State that the medical certificate issued by the

applicant was a forged certificate, it cannot be said that the

jurisdiction of this Court had come to an end. Filing of forged

document before this Court is an offence. Under these circumstances,

this Court cannot ignore the act of issuance of forged certificate as

well as filing of the same before this Court for the purpose of

obtaining an anticipatory bail order, otherwise, this Court would have 11 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

failed in discharging its constitutional duty of upholding the law of

the land.

The next question for consideration is that whether the

applicant has approached this Court with clean hands or not?

The applicant has given a declaration at page 2 of the present

application, which reads as under:-

"This is the first petition on behalf of the petitioner no other petition on the same subject matter has been filed either before this Hon'ble Court or before Hon'ble Supreme Court nor any such petition is pending before either Court."

It is submitted by the Counsel for the complainant that the

applicant is in the habit of playing fraud on the Court. Earlier he had

issued a forged medical certificate on the basis of which, one Smt.

Ragini Pandey had succeeded in getting anticipatory bail from this

Court, which was subsequently cancelled by this Court by order

dated 27/3/2018 passed in M.Cr.C. No.9375/2017, which has been

affirmed by the Supreme Court in SLP (Cri.) No.4986/2018 by order

dated 12/6/2018, but he is filing successive applications before this

Court by suppressing the fact that the similar prayer has already been

withdrawn.

In reply, it is submitted by the Counsel for the applicant, that

since, he was not a Counsel in the previously filed applications under

Section 482 of Cr.P.C., therefore, he is not aware of filing of any such 12 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

application.

Considered the submissions made by the Counsel for the

parties.

The applicant had filed M.Cr.C. No.48280/2018 for quashment

of FIR, which was withdrawn by order dated 28/6/2019 after arguing

at length. The relief prayed in M.Cr.C. No.48280/2018 reads as

under:-

"It is, therefore, most respectfully prayed that the present petition filed by the petitioner may kindly be allowed and the F.I.R. registered at Crime no.101/2018 under section 420, 465, 466, 468 & 120-B of I.P.C., and the consequential criminal proceedings against the Petitioner in pursuance to the said F.I.R. may kindly be quashed, in the interest of justice."

Thereafter, the applicant filed another application under

Section 482 of Cr.P.C., which was registered as M.Cr.C.

No.21485/2019, seeking following relief:-

"It is, therefore, most humbly prayed this petition filed on behalf of the petitioner may be allowed and please to recall the observation in the order dated 27-03-2018 with regard to fact that Dr Virendra Gour has issued the forge certificate to one Ragini Pandey, in which her admission in the hospital was shown from 04/06/2017 to 05/06/2017 in the interest of Justice."

As already pointed out, this application has also been filed for

recall of observations made by this Court in M.Cr.C. No.9375 of

2017 and the relief sought by the applicant in the present application

is identical to the relief which was sought in M.Cr.C. No.21485 of 13 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

2019, but still the applicant has given a declaration that "this is the

first application and no other petition on the same subject matter has

been filed either before this Hon'ble Court or before Hon'ble

Supreme Court nor any such petition is pending before either Court."

It is well established principle of law that whosoever comes to

the Court, must come with clean hands. It is always expected that no

one should suppress any material fact. In the present case, the prayer

for similar relief was already withdrawn, but even then, the present

application has been filed by suppressing the said material fact.

Under these circumstances, this Court is of the considered

opinion, that the repeat application for the similar relief, which was

claimed by the applicant in M.Cr.C. No.21485 of 2019 would amount

to review under Section 362 of Cr.P.C., which is not permissible.

It is next contended by the Counsel for the applicant, that the

observation made in para 36 of the order dated 27-3-2018 in M.Cr.C.

No. 9375/2017 would prejudice the mind of the Trial Court.

Considered the submission made by the Counsel for the

applicant.

As already pointed out, the observation made by this Court in

para 36 of the order dated 27-3-2018 in M.Cr.C. No.9375 of 2017 has

not prejudiced or influenced the Superior Officers of the applicant

and in spite of information sent by the C.M.H.O., Gwalior, the 14 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.16495/2021 Dr. Virendra Kumar Gaur Vs. State of M.P. and others

applicant was granted charge of the post of Specialist. Further, the

observations made by this Court in order dated 27-3-2018 are based

on enquiry report submitted by the State. However, by way of

abandon caution, it is observed, that the Trial Court shall decide the

Trial strictly in accordance with evidence which would come on

record.

Accordingly, this application is dismissed with cost of

Rs.10,000/- (Rs. Ten Thousand Only) to be deposited by the

applicant in the Registry of this Court within a period of 30 days

from today.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.04.06 16:36:00 +05'30'