Madhya Pradesh High Court
The State Of Madhya Pradesh vs Divashish Vishwas on 22 February, 2024
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 22 nd OF FEBRUARY, 2024
CRIMINAL REVISION No. 5331 of 2023
BETWEEN:-
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION S.T.F. DISTRICT BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI A.S.BAGHEL - GOVERNMENT ADVOCATE)
AND
DIVASHISH VISHWAS S/O SHRI DULAL KRISHNA
VISHWAS, AGED ABOUT 33 YEARS, R/O H NO 24
GEETANJALI GREEN CITY NEAR SANJAY DRIVE SAGAR
DISTRICT SAGAR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SAURABH SHRIVASTAVA - ADVOCATE)
This revision coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
This criminal revision has been filed assailing the order dated 06.07.2023
passed in Sessions Trial No.992 of 2021, whereby the learned 23 rd Additional
Sessions Judge, Bhopal has held that since on the date of commission of
offence, the respondent herein/accused was minor, therefore, the matter is to be
tried by the Juvenile Justice Board. The same is put to challenge herein on
various grounds.
2. The prosecution story reveals that the Professional Examination Board,
Bhopal conducted PMT examinations. The SIT Bhopal was conducting an
enquiry with respect to examinations. The report was submitted wherein it was
mentioned that the accused herein appeared and passed the PMT examination in
the year 2007. He obtained MBBS seat in M.P. quota based upon a forged and
fabricated domicile certificate. The aforesaid certificate was sent for verification
to the Tehsildar, Tikamgarh who vide his letter dated 24.12.2019 has clarified
that the domicile certificate presented by the accused was not issued from his
office, therefore, it was evident that he has used a forged and fabricated
document to procure his selection in MBBS examination. On that basis, a
criminal case for the offence punishable under Sections 420, 467, 468 and 471
of the Indian Penal Code, 1860 was registered at Police Station S.T.F., District
Bhopal at Crime No.36 of 2019. After completion of the investigation, charge
sheet was filed on 30.10.2021 before the concerned Magistrate. The matter was
committed to the Sessions Court. During the trial, an application under Section
9 of the Juvenile Justice (Care and Protection of Children) Act, 2015 was filed
by the accused to the effect that his date of birth is 03.05.1988. The alleged
domicile certificate was got prepared on 03.05.2005. He was about 17 years of
age and was minor on that date. Thus, the matter could not have been tried by
the Sessions Court. It has to be tried by the Juvenile Justice Board, Bhopal. The
Trial Court allowed the application holding that the date of preparation of
document i.e. 03.05.2005 will be the actual date on which the first offence was
committed and will be falling under the category of continuing offence and on
that date as the accused was a juvenile, he has to be tried by the Juvenile Justice
Board.
3. The aforesaid order is challenged on the ground that the forged and
fabricated document was prepared by the accused in the year 2005 and for the
first time the said document was used in procuring MBBS seat in the State of
M.P. in the year 2007, therefore, the same becomes the relevant date as far as
the commission of offence is concerned. He has drawn attention of this Court
to the relevant provisions of the IPC, particularly, Section 471 thereof, which
deals with using as genuine, a forged document or electronic record. It is
submitted that the aforesaid offence has to be tried by the Sessions Court. As
on the date of use of the forged document in the year 2007, the accused was a
major, therefore, it is within the jurisdiction of the Sessions Court to try the
offence. It cannot be termed as continuation of an offence which was
committed in the year 2005. He has placed reliance upon the judgment passed
by the Hon'ble Supreme Court in the case of Vikas Chaudhary Vs. State
(NCT of Delhi) and another reported in (2010) 8 SCC 508.
4. Per contra, learned counsel appearing for the respondent has vehemently
opposed the contentions and has supported the impugned order. It is argued
that the respondent has accepted the fact that he has prepared a forged and
fabricated document just to procure a seat in MBBS course in the State of M.P.
The document was prepared on 30.05.2005 and on that date the accused was a
minor. His date of birth is 03.05.1988. In terms of Section 467 of the IPC
which deals with forgery of valuable security, bills etc., the date on which the
document has been prepared will be the relevant date for the offence. It is
argued that forgery is defined under Section 463 of the IPC which has to be
read in consonance with Sections 467 and 468 of the IPC to constitute an
offence under the Indian Penal Code. It is contended that once the accused
admits the fact that he has prepared a forged and fabricated document he has
already committed an offence. Since the forged document i.e. the domicile
certificate was issued on 30.05.2005, then the same has to be treated as a
relevant date. However, the aforesaid document was for the first time used in
the year 2007 when he submitted a forged domicile certificate on 25.07.2007 for
procuring an MBBS seat in the State of Madhya Pradesh. On verification, it was
found that the document has not been issued from the office of Tehsildar.
Therefore, it cannot be said that the offence has been committed for the first
time in the year 2007. It being a continuous offence from the year 2005, it is
only the Juvenile Justice Board which is competent to deal with the case of the
respondent as he was a juvenile at the relevant time. He has placed a heavy
reliance upon the judgment passed by the Hon'ble Supreme Court in the case of
Rishipal Singh Solanki Vs. State of Uttar Pradesh and others reported in
(2022) 8 SCC 602 with reference to paragraphs 33.7 and 33.8. It is argued that
a hypertechnical approach should not be adopted in the matter while dealing
with a case of juvenility of an accused and if two views are possible then the
one favouring the accused is to be taken into consideration. The learned
Sessions Court has taken the correct view which does not call for any
interference. No other grounds are urged by the respective counsels.
5. Heard the learned counsels for the parties and perused the record.
6. It is an admitted position that the date of birth of the accused is
03.05.1988. He has admitted the position that forged and fabricated document
i.e. domicile certificate was got prepared by him and the same was issued on
30.05.2005. On the relevant date, he was merely 17 years of age. The other
aspect was that the aforesaid document was used in the PMT examination held
in the year 2007 for procuring an MBBS seat in M.P.quota. The document was
submitted by the petitioner on 25.07.2007. As there were several complaints
with respect to PMT examination at the relevant time, an SIT was constituted
and the case was investigated. The SIT investigated the entire matter and
submitted the report wherein it was found that the domicile certificate submitted
by the respondent for procuring a seat in the State of M.P. quota in MBBS
course was forged and fabricated document. The same was sent for verification
to the concerning Tehsildar and the report was submitted that such document
has never been issued from his office. On that basis, an FIR was registered for
the offence punishable under Sections 420, 467, 468 and 471 of the IPC. The
day on which he made the use of forged and fabricated document i.e. on
25.07.2007, he was major.
7. The main question for consideration before this Court is that whether the
case of the respondent herein has to be tried with by the Juvenile Justice Board
or by the Sessions Court. Admittedly, when the respondent has used the forged
and fabricated domicile certificate by submitting it to the authorities on
25.07.2007 for procuring a seat in MBBS course in M.P. quota, he has
committed an offence under Section 471 of the IPC and the same has been
pointed out in the investigation carried out by the SIT.
8. To the aforesaid effect, Section 471 of the Indian Penal Code is required to
be seen, which reads as under :-
"Section 471. Using as genuine a forged document or electronic
record.
Whoever fraudulently or dishonestly uses as genuine any
[document or electronic record] which he knows or has reason to
believe to be a forged [document or electronic record], shall be
punished in the same manner as if he had forged such [document or
electronic record]."
9. Admittedly, the same is triable by the Court of Sessions in terms of the
Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007. The
offence was committed in the year 2005 which relates to preparation of a forged
and fabricated document. It is not disputed that the respondent prepared the
forged and fabricated document on 30.05.2005. He has committed an offence
of preparing a forged and fabricated document which he has admitted before
this Court. If the arguments of accused/respondent are to be accepted then he
has committed two offences. One at the time when he has prepared a forged
and fabricated document i.e. on 30.05.2005 when he was juvenile for which
Sections 467, 468 of the IPC are attracted and the second offence is
committed, when he has used that forged domicile certificate to procure a seat
in MBBS course in the year 2007 in M.P. quota for which the offence under
Section 471 of the IPC is attracted. If two separate offences are registered
against the accused, then for the offence under Sections 467 and 468 of the
IPC, he has to be tried by the Juvenile Justice Board and for the offence under
Section 471 of the IPC he has to be tried by the Sessions Court. But the fact
of using the forged document came to the knowledge of the authorities when
SIT investigated the matter and found that document is forged and fabricated.
Accused was major at the relevant time.
10. The Hon'ble Supreme Court in the case of Vikas Chaudhary (supra), to
a certain extent has considered the similar proposition. The aforesaid case deals
with Section 364-A of the IPC The initial date of abduction was 18.01.2003 and
the accused was minor at the relevant time and his case fell under Juvenile
Justice (Care and Protection of Children) Act, 2000 but the ransom for the
same was demanded on 11.03.2003 for which the last call was made by him on
11.03.2003. The provisions under Section 472 of the CrPC was taken note of
by the Hon'ble Supreme Court and it was defined as a continuing offence and
the last date of demanding the ransom was considered to be the relevant date on
which the offence has been committed. It was observed that on the aforesaid
date, the accused was a major, therefore, the provisions of the Juvenile Justice
Act were no longer applicable to him.
11. The Hon'ble Supreme Court in the case of Sri Ganesh Vs. State of
Tamil Nadu and another reported in (2017) 3 SCC 280 in para 10 has
considered almost the similar situation. It is a case of offence under Section 376
of the IPC. The offence under Section 376 of the IPC was committed on more
than one occasion, but in order to see whether he was a juvenile or not, the date
on which the incident occurred becomes relevant. The same reads as under :-
"10. In the present case, the trial court took into account the
documentary evidence as contemplated in the statutory provisions
and returned a finding that the date of birth of the appellant was
19-10-1991. During the course of its judgment, the High Court
could not find such conclusion to be vitiated on any ground. In the
face of the relevant documentary evidence, there could be no
medical examination to ascertain the age of the appellant and as
such the consequential directions passed by the High Court were
completely unwarranted. Further, if the allegations of the
prosecution are that the offence under Section 376 IPC was
committed on more than one occasion, in order to see whether the
appellant was juvenile or not, it is enough to see if he was juvenile
on the date when the last of such incidents had occurred. The trial
court was, therefore, justified in going by the assertions made by
the victim in her cross-examination and then considering whether
the appellant was juvenile on that date or not."
12. Almost similar is the situation in the present case. The offence of preparing
a forged and fabricated document was committed when the accused was a
minor but the aforesaid matter came to the knowledge of the authorities when he
made use of that document for procuring a seat in MBBS course in M.P. quota
that was in the year 2007 when he was major. Therefore, the aforesaid analogy
would also be applicable to the case of the accused. The relevant date in the
present case will be the date on which he has actually used that document for
procuring the MBBS seat.
13. If the case is to be considered from another angle that had it been a
condition that he has prepared a forged and fabricated document but has never
used that document, the position will be otherwise. The said offence of
preparing a forged and fabricated document which was done on 03.05.2005
when he was a minor, he was required to be tried by the Juvenile Justice Board
and in terms of Section 9 of the Juvenile Justice (Care and Protection) Act,
2015, as the offence has been registered in the year 2019 after submission of the
report by the SIT Bhopal, there was no occasion in that event that a second
offence was committed but in the present case, he has not only prepared a
forged and fabricated document but he has also used the document, therefore,
the provisions of Section 471 of the IPC will clearly be attracted and on that
relevant date when he used the document, he was admittedly a major. As the
charge sheet is filed for offence under Sections 420, 467, 468 and 471 of IPC
the entire trial has to be conducted as a single case. Therefore, for the charge
under Section 471 of the IPC, the accused has to be treated as a major and all
the offences are to be tried jointly in a single trial. His case has to be dealt with
by the Sessions Court. The learned Trial Court failed to appreciate the aforesaid
aspect of the matter and placed heavy reliance upon the judgment passed by the
Hon'ble Supreme Court in the case of Rishipal Singh Solanki (supra) and has
sent the matter to the Juvenile Justice Board for consideration.
14. The case of Rishipal Singh Solanki (supra) has dealt with the age of the
juvenile. The paragraphs which are being relied upon by the counsel for the
respondent i.e. 33.7 and 33.8 are with respect to the age of juvenile wherein the
Hon'ble Supreme Court has observed that if it is a borderline case as far as age
of the juvenile is concerned, then hypertechnical approach should not be
adopted in the matter but in the present case the same is not the situation. The
date of birth of the accused is not disputed. The date of preparation of forged
and fabricated document is not disputed. The date of use of that forged and
fabricated document by the respondent is not disputed. Under these
circumstances as the facts of Rishipal Singh Solanki's case (supra) are
entirely on different footings, no benefit can be extended to the respondent.
15. Accordingly, the judgment dated 06.07.2023 passed by the learned 23 rd
Additional Sessions Judge, Bhopal in Sessions Trial No.992 of 2021 is
unsustainable and is hereby set aside. The respondent/accused is admittedly a
major on the date of commission of the offence, therefore, his case has to be
tried by the Court of Session.
16. The criminal revision is accordingly allowed and disposed off.
17. In view of the passage of time, the trial court is directed to conclude the
trial as expeditiously as possible.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
AM
