Punjab-Haryana High Court
Sukhbir Kataria vs Om Parkash on 14 October, 2021
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-53599-2018
Reserved on : 12.07.2021
Sukhbir Kataria
... Petitioner
Versus
Om Parkash
... Respondent
(2) CRM-M-54951-2018
Reserved on : 19.07.2021
Sukhbir Kataria
... Petitioner
Versus
Om Parkash
... Respondent
(3) CRM-M-57177-2018
Reserved on : 27.07.2021
Sukhbir Kataria
... Petitioner
Versus
Om Parkash
... Respondent
(4) CRM-M-54463-2018
Reserved on : 02.08.2021
Sukhbir Kataria
... Petitioner
Versus
Om Parkash
... Respondent
(5) CRM-M-947-2019
Reserved on : 16.08.2021
Sahdev and others
... Petitioners
Versus
Om Parkash
... Respondent
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(6) CRM-M-21528-2019
Reserved on : 17.08.2021
Arvind and others
... Petitioners
Versus
Om Parkash
... Respondent
(7) CRR-2265-2019
Reserved on : 13.09.2021
Om Parkash
... Petitioner
Versus
Sukhbir Kataria and another
... Respondents
Pronounced on : 14.10.2021
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
Present: Mr. S.K. Garg Narwana, Senior Advocate assisted by
Mr. Vishal Garg, Advocate and
Mr. J.S. Johal, Advocate for the petitioner (s)
in CRM-M-53599-2018; CRM-M-54951-2018; CRM-M-
57177-2018; CRM-M-54463-2018 and CRM-M-21528-2019
and for respondent No.1 in CRR-2265-2019.
Mr. Deepender Singh, Advocate for the petitioner (s)
in CRM-M-947-2019.
Mr. Manish Soni, Advocate for the respondent (s)
in CRM-M-53599-2018; CRM-M-54951-2018; CRM-M-
57177-2018; CRM-M-54463-2018; CRM-M-947-2019;
CRM-M-21528-2019 and for the petitioner (s)
in CRR-2265-2019.
Mr. Harish Kumar Nain, AAG, Haryana
for respondent No.2 in CRR-2265-2019.
(The proceedings have been conducted through video
conferencing, as per instructions.)
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G.S. Sandhawalia, J.
The present judgment shall dispose of CRM-M-53599-2018;
CRM-M-54951-2018; CRM-M-57177-2018; CRM-M-54463-2018;
CRM-M-947-2019; CRM-M-21528-2019 and CRR-2265-2019. The
spinal connection of the complaints is similar in which the petitioners are
an accused alongwith others and had been summoned in different
complaints filed primarily by Om Parkash and in one FIR case discharged
by the Additional Sessions Judge for the offences under IPC, therefore,
the present set of cases have been taken up together.
Facts of CRM-M-53599-2018
2. The present petition has been filed by Sukhbir Kataria,
accused no.27 for quashing of Criminal Complaint bearing No.74285
dated 24.01.2013 (Annexure P-1) titled as 'Om Parkash Vs. Devender
Kataria & others' filed under Section 420, 467, 468, 471, 120-B of the
Indian Penal Code (IPC) and Section 31 of Representation of People Act,
1950. The order dated 21.07.2014 (Annexure P-3), vide which the
petitioner alongwith others had also been summoned under the provisions
of IPC only is also subject matter of challenge.
3. Challenge has been raised on the ground that disclosure of
commission of any criminal offence is not made out and the proceedings
are abuse of the process of Court. Further challenge has also been raised
to the order dated 07.04.2018 (Annexure P-5) passed by the Judicial
Magistrate 1st Class, Gurugram, whereby application for dismissal of the
complaint and discharge of the petitioner had been dismissed and the
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order dated 06.08.2018 (Annexure P-7), whereby revision petition against
the said order had also been dismissed.
4. The discharge of the petitioner which was rejected vide order
dated 07.04.2018 was sought primarily on the ground that the
complainant was the General Secretary of the Matdata Jagrook Manch,
Gurgaon, which was not a registered Society under the Haryana
Registration and Regulation of Societies Act, 2012. The same had been
repelled on the ground that it was filed at a belated stage and was only an
attempt to delay the proceedings before the Trial Court and similar
application had also been dismissed. The revision petition before the
Additional Sessions Judge, Gurgaon of the petitioner was also rejected on
06.08.2018 (Annexure P-6), on the ground that the criminal proceedings
could be set into motion by anyone and merely because the complainant
as such was a convict in a murder case would not as such bar him from
setting the criminal law into motion.
5. The gamut of the allegations against the petitioner contained
in the complaint which has been filed are pertaining to the votes which
were made on the basis of forged residence proofs by the other accused
and on the basis of these forged documents, the votes were prepared and
used in Gurgaon Vidhan Sabha Constituency. The allegations against the
petitioner are only levelled in paragraph Nos.2 & 9 of the complainant.
6. A perusal of the same would go on to show that there were
forged ration card bearing no.4285832 of House No.1250, which accused
no.1 to 7 had got made in their favour and thereafter got Electoral
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Identity Cards. Form no.6 was stated to have been used for making the
votes and same was filled by the petitioner, accused no.27 in his own
handwriting and declaration in the column had also been filled by the said
accused. It is further the case of the complainant that accused no.1 to 7
had made votes in different booths bearing no.133, 136 and 111.
Reliance was placed upon the information provided by the election office
under Right to Information Act, which was enclosed with the complaint.
Averments were made regarding the other accused, who prepared their
Electoral Identity Cards on the basis of forged residence proofs, but it is
pertinent to mention that there is no reference to the petitioner, accused
no.27 having participated in any manner qua preparation of residence
proofs of other accused No.1 to 7.
7. In paragraph no.9, it has been specifically stated that accused
no.25 Sunita had prepared a fake ration card bearing no.538231 and
Electricity Bill Account no.C.T.02-1622 and there was conspiracy to
provide the benefit to the petitioner in the Vidhan Sabha Constituency
Elections. The main ring leader of the forgery is stated to be the
petitioner with whose collusion identity cards of other accused have also
been used for the political benefit of the petitioner herein. Accused no.8
to 26 were stated to be permanent residents of Village Shahpur, Tehsil
Bawal, District Rewari and not having any residential place or any other
business activities in Gurgaon. They had prepared their identity cards in
a forged manner to provide benefit to the petitioner, accused no.27, who
is stated to be habitual criminal and 7 such like cases are pending against
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him in the Courts at Gurgaon. Relevant paragraph no.2 & 9 are reads as
under:-
"2. That the accused no.1 to 7 have got made forged ration
card no.4285832 from House No.1250 from 8 Biswa, Village
Gurgaon and while using the above ration card got made
Electoral Identity Card. Form No.6 which is used for making
the vote, the same was filled by accused no.27 with his own
handwriting and the declaration in column no.3 of the form
and the column to be filled by the registration officer, has also
been filled with own handwriting. The votes of accused no.1
to 7 have been fraudulently made from different booth no.133,
136 and 111. The copy of information provided by the
election office under Right to Information Act, is enclosed
herewith.
9. That accused no.25 in a very clever manner fake Ration
Card no.538231 and Electricity Bill Account No.C.T. 02-
1622, meter No. V.D 2-655, under a conspiracy, all the above
mentioned accused persons in order to provide benefit to
accused no.27 in 77 Gurgaon Vidhan Sabha Constituency
elections, have used their identity cards and the main ring
leader of the forgery of all the above mentioned accused
persons is accused no.27. With whose collusion, by getting
prepared the identity cards of all the above mentioned accused
persons from above Constituency 77 Gurgaon, have also used
the same for his political benefit. Whereas, accused no.8 to 26
are permanent residents of Village Shahpur, Tehsil Bawal,
District Rewari. They are not having any residential place or
any other business activities in Gurgaon. They only by getting
prepared the identity cards in a forged manner have used their
identity cards in order to provide benefit to accused no.27 in
Gurgaon Vidha Sabha area. Accused no.27 is a habitual
offender, who has remained associated with such like fraud. 7
such cases are pending against him in the courts at Gurgaon."
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8. In support of the said averments, the complainant-respondent
examined 7 witnesses and placed voluminous documentary record on the
file of the Trial Court. At one point of time complaint was sought to be
withdrawn, which was rejected on the ground that the complaint related
to non-bailable and cognizable offences, which would be clear from the
order dated 11.03.2014 on the file of record and eventually a report was
called under Section 202 Cr.P.C. by the Magistrate. Resultantly, report
from the DCP (Headquarter) had been received on 15.05.2014, in which
it had been mentioned that there is no opinion of handwriting expert
regarding the forgery as such which had been mentioned in the complaint
which is pertaining to filling up of form no.6. The summoning order was
then passed.
9. While referring to examination of CW-1 Anil Kumar, Sub-
Inspector, who had produced the ration cards, it is to be noticed that
reference was only made to the ration cards no.538231 and 538232,
which pertain to accused no.15 & 17 and 23 & 24 as per the complaint
itself. Relevant ration card No.4285832 pertaining to the allegations
against the petitioner and accused No.1 to 7 had not been referred to,
though the same was produced by the complainant when he had appeared
as CW-5. However, in spite of that the Magistrate came to the conclusion
that the ration cards were prepared without submitting the requisite
documents and were issued illegally. While placing reliance upon the
other evidence on record including the statement of the complainant and
one CW-6 Sunita that form no.6 of accused no.1 was filled by the present
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petitioner and on account of which she had identified the handwriting of
the petitioner being the Member of Gram Panchayat in which the
petitioner had also worked as a Sarpanch. Resultantly, the finding was
recorded that the ration card no.4285832 was a bogus ration card and a
forged document and prima facie there was a conspiracy and, therefore,
the petitioner alongwith other accused were summoned under the
provisions of IPC. Relevant part of the reasoning of the summoning
order passed by the Magistrate reads as under:-
"5. I have gone through the contents of the complaint as
well as the preliminary evidence led by him. Report under
Section 202 Cr.P.C. perused. The arguments led by the
complainant have been heard at length by me.
6. The allegation against the accused, in brief; are that the
accused persons got prepared forged votes on the basis of forged
documents. The bogus votes obtained by such means were cast
in favour of accused no.27 namely Sukhbir. The allegations are
to the effect that accused no.1 to 7 got issued election voting
cards after forging ration card no.4285832. The accused no.27
namely Sukhbir got filled the form no.6 in his own handwriting
which was required to be filled by the registration officer. This
act was done by them in conspiracy with accused no.27 in order
to obtain unlawful political mileage. The complainant has
examined PW-1 Anil Kumar, Sub-Inspector, T.R. Centre,
Gurgaon who deposed that ration card no.538231 & 538232 are
issued in the name of Jeet Ram son of Prabhati and Sardar Singh
son of Mohar Singh respectively. He has further deposed that
form D1 in support of ration cards have been decomposed due to
rain. In other words, the above mentioned ration cards were
prepared without following the requisite supporting documents
and issued illegally. CW2 Arvind, authorized representative of
Mata Sheetla Gas Service, Gurgaon deposed that gas copy
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bearing consumer no.214364 is in the name of Salig Ram Meena
and Ex.C1 and Ex.C2 (gas copies) in the name of Sardar Singh
are not in consonance of his official record. He further deposed
that these copies have been forged for obtaining unlawful
benefit. CW3 Ishwar Singh, Asst. District Electoral Officer,
Rewari and CW4 Daya Chand, Election Officer, Gurgaon also
deposed in favour of the complainant. CW5 Om Parkash
complainant himself reiterated the contents of complaint. CW6
Sunita deposed that form no.6 of Devender Kataria was filled by
Sukhbir Kataria i.e. Accused no.27. She has identified the
handwriting of Sukhbir Kataria. She has deposed that accused
Sukhbir Kataria used to work as a Sarpanch at the time when she
was member of Gram Panchayat, Gurgaon.
7. It is well settled proposition of law that at the stage of
summoning, the material on record is not required to be weighed
threadbare with minute details by the court. In other words, it is
a prima facie case which has to be seen by the court at the stage
of summoning and the probative value of the material on record
is not to be assessed from the perspective of a full proof case. In
the instant case, the material as discussed above prima facie
shows that the accused in conspiracy with each other procured
bogus votes at multiple addresses on the basis of a forged ration
card no.4285832 electricity bills etc. In these circumstances,
prima facie it appears that the accused in conspiracy with each
other procured false documents with intent to cause injury to the
public at large as well as to the rivals in the elections and thereby
committed an offence of forgery for the purpose of cheating.
8. In view of above discussion there exist prima facie case
sufficient ground to proceed against the all the accused under
Sections 420, 467, 468, 471 & 120-B IPC. However, no prima
facie case for summoning the accused under Section 31 of
Representation of Peoples Act, 1950 is made out. Hence, all the
accused be summoned to face trial under the above sections for
30.07.2014.
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Arguments
10. The primary ground raised by the Senior Counsel
challenging the summoning order in principle is that the order is non-
speaking and does not give any reasons on the basis of which the Trial
Court could have come to the conclusion that the offences under the
provisions of IPC are made out qua the petitioner. Apart from that
malafides as such of the complainant have also been alleged that the same
was on account of political vendetta, since the petitioner had been elected
as Member of Legislative Assembly in the year 2009 and his election had
been challenged by one Umesh Aggarwal by filing election petition,
which was eventually disposed of as having been rendered infructuos in
the year 2014.
11. It is the case of the petitioner that Umesh Aggarwal, who
was the President of the BJP had sought information from the Electoral
Registration Officer, which would be clear from the document annexed
with the written reply submitted herein also. The Election Petition
(Annexure P-7/A) has also been referred to, to show that the same
allegations have also been made regarding the bogus votes, which had
been created for polling purposes. Similarly, it is the contention of the
counsel that Sunita Kataria, one of the witnesses of the complainant, was
a Member of the Gram Panchayat of the opposite side and was also the
President of the Matdata Jagrook Manch, Gurgaon. The same would be
clear from the complaint submitted by her and also appended alongwith
impugned complaint filed by complainant-Om Parkash, Secretary of the
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Matdata Jagrook Manch, Gurgaon.
12. Mr. Manish Soni, on the other hand has justified the
summoning order on the ground that Sunita Kataria had identified the
handwriting of the accused having worked with him being a member of
the Gram Panchayat. He argued that the petitioner was accused in several
set of cases, filled up various forms and forged ration cards, which would
be clear from the records of the present case and also of the connected
cases.
Facts of CRM-M-54951-2018
13. The petitioner Sukhbir Kataria, who is accused no.14 in
Criminal Complaint bearing No.74136 dated 04.06.2013 (Annexure P-1)
titled as 'Om Parkash Vs. Satish Kumar and others' seeks quashing of the
same alongwith the summoning order dated 22.07.2013 (Annexure P-2),
whereby he had been summoned to face trial under Section 420, 467,
468, 471, 120-B IPC. In the present case summoning has not been made
under Section 31 of Representation of People Act, 1950.
14. The ancillary orders dated 07.04.2018 (Annexure P-4)
whereby the application for discharge had been dismissed and upheld by
the Additional Sessions Judge, Gurugram dated 11.05.2018
(Annexure P-5) are also challenged.
15. The allegations in the impugned complaint pertained to
identity card, whereby the photo on Form ID ECI-EPIC-001B had been
fixed issued by the Election Commission, Government of India. It is the
grouse of the complainant that the said forms were filled with personal
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affidavit in a pre-planned manner and got attested by the Election Officer
on the basis of the report of the concerned B.L.O Office. Thus, specific
allegations have been given against each accused No.1 to 13 as to how
they have made multiple votes by putting the photograph, showing
himself as some other person, whereas the original vote has also been
enclosed alongwith the complaint.
16. The common thread which runs against the petitioner is that
he is conspirator and benefit had been taken by him in the election of
2009 for the legislative assembly. The accused are stated to be family
members in as much as some of them being parental uncles and cousins
and family friends. The son of the petitioner Nitish Kumar has been
arrayed as accused no.6 and is also stated to be involved in the said
criminal conspiracy and also had forged the document of one Nitish, who
is stated to be son of one Raj Kumar and had thus got his vote made
containing his photograph. Similar allegations against other two accused
no.9 and 10, who are brother-in-laws of the petitioner have also been
made wherein multiple votes have been created, apart from the original
vote as such of the said persons. Other accused are supposed to be
Personal Advisors and Personal Assistants of the petitioner. The relevant
portion of the complaint wherein allegations have been made against
accused no.6, 9 and 10 read as under:-
"In what manner accused no.6 is an accused:-
001B (A-16 enclosed) Form has been used by Nitish
Kumar son of Sukhbir Kataria by putting his photograph, by
showing himself to be Nitish son of Raj Kumar, House
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No.1595, Village Gurgaon, has got made his Vote No.421
containing photograph from Booth No.135 (A-17 is enclosed).
He is son of accused no.14, at the time when this 001B Form
was filled, his age was only 16 years. This conspiracy has been
done in order to provide benefit to accused no.14 in the election
completed in the year 2009 because accused no.6 is son of
accused no.14.
In what manner accused no.9 is an accused:-
001B (A-25 enclosed) Form has been used by Rajesh
Rana son of Haripal Rana by putting his photograph, by
showing himself to be Rajnish son of Devender, House
No.1615, New Booth No.196, Vote No.515 (A-26 enclosed),
Village Gurgaon and again by filling 001B (A-27 enclosed),
has made vote No.1373 from Booth No.19, in name of Ram
Parkash son of Ram Singh, House No.792/35, Village Gurgaon
(A-28 enclosed), whereas his two votes from House No.2023,
Ashokpuri from Booth No.5, Vote No.1543 (A-29 enclosed)
and second from House No.1407, Booth 133, Vote No.603 (A-
30 enclosed), are there. This conspiracy has been done in order
to provide benefit to accused no.14 in the Vidhan Sabha
election completed in the year 2009 because accused no.9 is
real brother-in-law (looser) of accused no.14 and is resident of
village Shahbad, Daultpur, Delhi and there also has made his
vote from his residence.
In what manner accused no.10 is an accused:-
001B (A-31 enclosed) Form has been used by Devender
Rana son of Haripal Rana by putting his photograph, by
showing himself to be Amit son of Jai Bharat, House No.1009,
Village Gurgaon and by again filling 001B form (A-32
enclosed), showing as Sandeep son of Jile Singh, House
No.1036A, Village Gurgaon, has got made vote containing
photograph from House No.1009, Booth No.131, Vote
No.1351 (A-33 enclosed) and House No.1035-A, Village
Gurgaon in new Booth 192, Vote No.649 has been made (A-34
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enclosed). Apart from this Devender Rana by showing himself
to be Murlidhar son of Naresh Kumar and Mukesh Kumar son
of Harichand, have made to (two sic.) votes from House
No.177 at Booth No.130, Vote No.580 (A-35 enclosed) and
House No.811, Booth No.131, Vote No.448 (A-36 enclosed)
and apart from the above have made his two votes from House
No.G-73, South City, Gurgaon, at Booth No.153, Vote
No.1185 (A-37 enclosed) and House No.1407, Village
Gurgaon, at Booth No.133, Vote No.607 (A-38 enclosed).
Apart from this has made his vote from Shahbad, Daulatpur,
Delhi. This conspiracy has been done in order to provide
benefit to accused no.14 in the Vidhan Sabha election
completed in the year 2009 because accused no.10 is real
brother-in-law (looser) of accused no.14 and has been got
appointed as Assistant Government Pleader by the minister in
Punjab and Haryana High Court. It is also being informed for
the investigation that the real Amit Chauhan son of Jai Bharat
Chauhan, House No.351/3, Booth No.88 has also made Vote
No.944 (A-39 enclosed)."
17. The Magistrate initially preferred not to send the complaint
(Annexure P-1) under Section 156 (3) Cr.P.C. for registration of FIR,
vide order dated 04.06.2013 by noticing that complainant had produced
all documents and attached list of witnesses with the complaint. After
examining four complainant witnesses who were examined on
11.07.2013, the summoning order had been passed on 22.07.2013
(Annexure P-2). The reasoning contained in the said order reads as
under:-
"6. The documents placed on file shown that accused no.1 to
13 applied to get their names incorporated in voter list and
these documents also shows impersonation and tempering. The
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further allegations are that accused no.14 contested the election
by forging numerous documents in collusion with accused
no.15 and 16 and accused no.1 to 13 were included in voters
list on the basis of this forged and false documents. Hence the
entire preliminary evidence shows criminal conspiracy on the
part of all accused person.
7. In view of above said discussion all the accused are
summoned under Sections 420, 467, 468, 471 read with
Section 120-B of IPC are summoned for 16.8.2013 on filing of
PF etc. However, no case is made out for summoning accused
under Section 31 of Representation of People Act, 1950.
Arguments
18. Senior Counsel has accordingly argued that it is a non-
speaking order and does not reflect application of mind as to which of the
offences have been made out and on which allegation the petitioner
alongwith other accused have been summoned. It is submitted that there
is nothing to show that the said voters had polled votes in favour of the
petitioner. It is further submitted that original Nitish had never been
produced nor his father Raj Kumar to hold out that form filled by the
petitioner's son was not by him being the original voter. It is further the
contention of the Senior Counsel that none of the witnesses as such
deposed that who forged the documents.
19. Counsel for the complainant-Mr. Manish Soni, on the other
hand has argued that all the close relatives are involved including the son
of the petitioner and neither it is the case of the petitioner in the present
petition that the said persons are not his relatives. It is submitted that
none of the accused have come forward challenging the fact that they are
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not relatives and had accepted the summoning order, which was passed
way-back in the year 2013. It is submitted that the larger conspiracy is
made out and the petitioner thus would be liable under the said
provisions. Once sufficient evidence as such has come on record that the
other accused are his close relatives and he would be the natural
beneficiary. Pre-charge evidence is to be led and sufficient opportunities
would be granted to the petitioner and no case is made out as such to
interfere in the proceedings at this stage, as prima facie case is made out
on the basis of documents itself. He diligently has referred to the record
to demonstrate that one Nitish Kumar had filled out the form showing his
father's name as Raj Kumar which had been exhibited as Ex.PW1/E,
which was proved by the Naib Tehsildar, PW-1 Sant Lal. He,
accordingly, pointed out that the averments are that he was minor at that
time and that Vote No.421 had been made on the basis of said form.
20. Regarding accused no.9 Rajesh Rana reference has been
made to the form which had been filled up wherein the name of Rajnish
son of Devinder had been filled out as Ex.PW1/E and his vote had been
mentioned at Serial No.515. The same person thereafter had allegedly
filled out another form whereby he has been shown as Ram Parkash and
Vote no.1373 has been made. The said person already has two votes at
Serial No.1543 and 603, wherein his name has been mentioned as Rajesh
Rana son of Hari Pal and Rajesh son of Har Pal Singh.
21. Qua accused no.10 the Form No.001B exhibited as
Ex.PW1/K had been filled showing himself as Amit son of Jai Bharat and
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another form (Ex.PW1/L) filled showing himself as Sandeep son of Jile
Singh, while putting his photograph and Vote nos.1351 and 649 had been
made. The same person had shown himself to be Murlidhar son of
Naresh Kumar and Mukesh Kumar son of Harichand having made Vote
Nos.580 and 448. Apart from the said fact he was stated to have two
other votes also at different booths having Vote Nos.1185 and 607. It is
submitted that specific averments were made that the said person was got
appointed as Assistant Government Pleader by the petitioner in this
Court.
22. It is, thus, submitted that the Magistrate was justified in
summoning the petitioner and other accused, as prima facie offences are
made out under the relevant provisions, as forgery of valuable securities
for the purpose of cheating and fraudulently using as a genuine document
has been done which they knew and had reason to believe that the same
were forged documents and thus they are liable for prosecution.
Facts of CRM-M-57177-2018
23. The petitioner Sukhbir Kataria, who is accused no.10 in
Criminal Complaint bearing No.122 dated 15.06/10.07.2013
(Annexure P-1) titled as 'Om Parkash Vs. Parveen and others' seeks
quashing of the same alongwith summoning order dated 16.12.2013
(Annexure P-2) passed by the JMIC, Gurgaon, vide which he had been
summoned to face trial under Section 420, 467, 468, 471, 120-B IPC.
Summoning has not been made under Section 31 of Representation of
People Act, 1950, as in other cases.
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24. The ancillary orders dated 07.04.2018 (Annexure P-4)
whereby the application for discharge had been dismissed and upheld by
the Additional Sessions Judge, Gurugram dated 06.08.2018
(Annexure P-6) are also challenged.
25. The allegations in the impugned complaint qua the petitioner
relate to accused no.5 to 8, who are Inderjit son of Ram Iqbal and his
family members. It has been alleged that the said accused had made
multiple votes at Gurgaon on the strength of ration card no.658457,
which had been prepared by the present petitioner, accused no.10 in his
handwriting and details of the family members had also been written by
the petitioner in his handwriting. The accused no.9 working as Assistant
Food & Supply Officer, had also put his seal and signatures on the blank
ration card. The same was for the purposes of preparing the votes on
wrong addresses, as the original Inderjit is son of Virender Singh.
26. The allegations against the petitioner specifically are that he
is the ring leader of the entire episode and declaration in form no.6/8 of
accused no.5 to 8 had also been filled by him. That on the basis of the
said votes he had reached to the level of the Minister in the Haryana
Government. The relevant portion of the averments made in the
complaint, thus, read as under:-
"In what manner accused no.5 is an accused.
Inderjit son of Ram Iqbal, Vote No.1347 at House
No.1448, Eight Biswa, Village Gurgaon, Booth No.136, Identity
card No.WDC0628297 and vote No.706 at Booth No.133, and
has also made Identity card No.HVV3198397 from House
No.1468/12, Village Gurgaon. As per the information received
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under Right to Information Act, 2005, Ration Card No.658457
Inderjit Singh son of Ram Iqbal Singh, House No.1448, Eight
Biswa, village Gurgaon has been prepared by accused no.10 in
his hand writing and the detail of the members has also been
written by accused no.10 in his hand writing. The signatures of
the person are also not there in whose name card has been made
but it seems that Assistant A.F.S.O Accused No.9 has put his
seal and signatures on the blank ration card. Apart from this the
old electricity account No.CR01-3705 and new account
no.AB013512 and K.No.2111037615, which is installed in the
house of Inderjit son of Virender Singh resident of House
No.87/2, Dayanand Colony, Gurgaon, the same has been used
by Inderjit son of Ram Iqbal Singh for making is (sic. his)
forged vote in collusion with accused no.10 whereas original
Inderjit son of Virender Singh House No.87/2, Dayanand
Colony, by giving his affidavit has stated that it is wrong that
Inderjit son of Ram Iqbal has used his electricity bill in order to
make his vote in a fraudulent manner.
In what manner, accused no.10 is an accused.
Accused No.10 Sukhbir Singh Kataria is the ring leader
of this entire episode because he has prepared the ration card
No.657457 of accused no.5 to 8 in his own hand writing in
collusion with accused no.9 and the detail of the family
members has also been filled by the accused in his own hand
writing. Apart from this, the declaration of form no.6/8 of
accused no.5 to 8 and the column to be filled up by the
registration authority of the assembly constituency has also been
filled up by accused no.10. Accused no.10 has reached at this
place by making votes on the basis of fake documents from
Panchayat member to Sarpanch and to the level of minister in
Haryana Government. As per the information received through
Right to Information Act, 2005, fake votes were prepared
through fake documents by making changes in the date of birth
of the children in their certificates of Matric and Middle of
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Haryana Board and CBSE, Passbook of bank, house rent,
electricity bill, fake ration cards and in the year 2009 which the
accused had contested the election of Vidhansabha 77, the that
time full benefit of these fake votes was taken and on the basis
of the fake votes became victorious in the assembly elections.
Hon'ble Court of Sh. Sunil Kumar, JMIC, Gurgaon, has made
accused in two cases and has been made as an accused under
Sections 420, 467, 468, 471, 120-B of Indian Penal Code by the
Court of Sh. Ashok Mann, JMIC, Gurgaon and the accused is on
bail on (sic. in) all the three cases and in similar district courts,
eight other cases are pending. In the Municipal elections
conducted in the year 2005 also, the case (State Versus Dhanpat)
of fake ration cards recovered which were being used for polling
through accused no.10, is pending in the Hon'ble court of
Sukhpreet Singh."
27 The Magistrate initially preferred not to send the complaint
(Annexure P-1) under Section 156 (3) Cr.P.C. for registration of FIR,
vide order dated 15.06.2013 and fixed the case for preliminary evidence
of the complainant.
28. Five complainant witnesses were examined on 30.07.2013
and the summoning order was passed on 16.12.2013 (Annexure P-2).
While noticing the statements of the said witnesses, the Magistrate came
to the conclusion that the evidence led by the complainant and the
documents placed on record showed that accused no.1 to 8 were having
votes of two booth, on the basis of forged identity proofs and ration
cards. It was held that accused no.9 & 10 having conspired alongwith
accused no.1 to 8 for getting the votes prepared there were sufficient
grounds to summon the accused, as noticed above. Relevant part of the
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summoning order reads as under:-
"The complainant in order to prove his case has examined five
witnesses namely CW1 Inderjeet son of Virender Singh
deposed that he is having electricity connection bearing
account No.AV010693. The electricity bill Ex.PW1/A has
been used by some other Inderjeet son of Ram Iqbal for
getting his fake identity proof and vote prepared. He has
placed on record his other electricity bills Ex.PW1/B to
Ex.PW1/D.
CW-2 Sunita deposed that she has worked with accused No.10
Sukhbikr Kataria as Member Panchayat when he was
Sarpanch and therefore has seen him reading and writing. She
identified his handwriting on Ex.CW2/A, Ex.CW2/B which is
Form No.6 of Inderjeet Singh son of Ram Iqbal, Ex.CW2/C
and Ex.CW2/D which is ration card of Inderjeet Singh son of
Ram Iqbal. She has also deposed that the ration card used by
Sheela Devi daughter of Inderjeet, Morti Devi wife of
Inderjeet, Shiv Shankar son of Inderjeet is also in the
handwriting of Sukhbir Singh.
CW-3 Rakesh Kataria deposed that he obtained the
information from the Food & Supply Department under the
RTI Act, 2005. As per the information obtained the address of
Dilmohan son of Govind Ram as entered in ration card
No.003150 is House No.383, Ward No.2, 12 Biswa, Gurgaon
and Ashok Vihar is not entered in D4 which means that the
Ashok Vihar address mentioned in the said ration card does
not actually exist in the public record and the same is forged
one. The information obtained under the RTI is contained in
documents Ex.PW3/A and Ex.PW3/B. He has further deposed
that in the ration card of Dilmohan in the list family members
the name of Dilmohan is not written and the relevant
document in Ex.PW3/C and Ex.PW3/D. Similarly, in the
ration card Ex.PW3/E and Ex.PW3/F the address Ashok Vihar
has been entered by tampering of the ration card.
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CW-4 Sant Lal, Naib Tehsildar, Election, Gurgaon deposed
that the documents Ex.PW4/B to Ex.PW4/F, Ex.PW4/I to
Ex.PW4/M, Ex.PW4/Q to Ex.PW4/Z are the documents
which have been obtained through RTI and have been issued
by their office.
CW-5 complainant Om Parkash deposed that accused Parveen
Kumar and Naveen Kataria have got their fake votes prepared
on the basis of forged document and they are having votes in
booth no.11 as well as in boothh no.129. He further deposed
that Naveen Kumar son of Dilmohan also attempted to prepare
third identity proof in the name of Suresh and the relevant
document is Ex.PW4/A. He deposed that Inderjeet son of
Ram Iqbal, Sheela Devi daughter of Inderjeet, Moorti Devi
wife of Inderjeet, Shiv Shankar son of Inderjeet are also
having their votes in Booth No.136 and 133 on the basis of
fake identity proofs and forged ration cards. He deposed that
accused no.9 issued blank ration cards after putting his
signatures and official stamp. He deposed that accused No.10
has filled up the blank ration cards in his own handwriting and
got the fake votes prepared. He also made complaints
Ex.PW5/A to Ex.PW5/B to SHO, P.S. City, Gurgaon. He
deposed that accused no.9 also issued fake and forged ration
cards which are Mark CW5/1 to mark CW5/33. He deposed
that all the accused persons have hatched the conspiracy for
getting the fake votes prepared.
In view of the facts averred in the complainant and the
evidence led by the complainant as discussed aforesaid and the
documents placed on record in support of the complaint, the
complainant has been able to show that the accused no.1 to 8
are having their votes in the two booths on the basis of forged
identity proofs and ration cards and accused no.9 and 10 have
conspired along with accused no.1 to 8 for getting their fake
votes prepared. Accordingly, there are sufficient grounds to
summon the accused no.1 to 10 to answer the allegations
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under Section 420, 467, 468, 471 read with section 120-B of
IPC.
Therefore, the accused no.1 to 10 be summoned for
14.02.2014 on filing of necessary PF and copies of complaint
etc.
However, no summoning of the accused persons is made
under Section 31 of the Representation of People Act, 1950."
Arguments
29. Senior Counsel Mr. Narwana has vehemently submitted that
the petitioner has been summoned on the basis of photocopy of the
documents placed on record and no officials of the Food & Supplies
Department had been summoned that the ration card was forged. By
placing reliance upon the statement of CW-2 Sunita, he argued that she
did not say anything about the other family members of Inderjit Singh
and similarly CW-3 Rakesh Kataria did not say anything negative qua the
petitioner. Therefore, the basis of summoning is not justified. CW-4 Naib
Tehsildar of the Election Wing had not brought the original record and,
therefore, the exhibits as such which had been placed on record could not
have been relied upon and it could not be said that there were two votes
prepared. He submitted that reliance had been placed upon the voter list,
identity cards of Booth no.133 and 136, which were not even exhibited as
Ex.PW4/O and Ex.PW4/P, but were taken into consideration. He,
accordingly, argued that the complainant CW-5 Om Parkash only talks
about the ration card being blank and filled in the handwriting of the
petitioner, but the said ration card had not been produced by the official.
No handwriting expert had been produced and, therefore, the allegation
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that the signatures were forged was not even proved, while summoning
the petitioner alongwith other accused. Accordingly, he placed reliance
upon the judgments passed in 'M/s Pepsi Foods Limited Vs. Special
Judicial Magistrate, 1997 (4) RCR 761, M/s GHCL Employees Stock
Option Trust Vs. M/s India Infoline Limited, 2013 (2) RCR 519 and
'HDFC Securities Ltd. And others Vs. State of Maharashtra and
another', 2017 (1) SCC 640 to submit that summoning of a person is a
serious consequence and at least reasoning should have been given in the
impugned order. He has also placed reliance upon the observations of
this Court passed in a connected matter bearing CRM-M-39202-2018
inter se parties decided on 26.04.2021 that in the absence of originals not
being produced and in the absence of any handwriting expert, the
summoning order had been quashed.
30. Mr. Manish Soni, counsel for the complainant on the other
hand has argued that no reasons were required, as prima facie case only
has to be taken into consideration. While referring to the record, he
submits that it was a case of multiple votes of accused no.5 to 8 and the
issue of conspiracy was much large and the beneficiary was the
petitioner. He has placed reliance upon judgments of the Apex Court in
'J.P. Sharma Vs. Vinod Kumar' 1986 (2) SCR 388, Shatrughna
Prasad Sinha Vs. Rajbhau Surajmal Rathi and others' 1996 (6) SCC
263, 'Deputy Chief Controller of Imports and Exports Vs. Roshanlal
Agarwal and others', 2003 (2) SCR 621, 'Bhushan Kumar and
another Vs. State (NCT of Delhi) and another' 2012 (2) SCR 696,
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'Sonu Gupta Vs. Deepak Gupta and others', 2015 (3) SCC 424 and
'State of Gujarat Vs. Afroz Mohammed Hasanfatta', (2019) 20 SCC
539.
31. It is, accordingly, pointed out that a perusal of the voter list
of two booths would go on to show that the names of accused no.5 to 8
Inderjeet, Sheela Devi, Murti Devi and Shiv Shanker found mentioned at
two places, which were the specific averments in the complaint. He
submitted that the ration card was already on record as Ex.PWC/2 in
favour of Inderjit Singh and the Form no.6 had been also exhibited
showing the address of House no.1448 which had been duly entered in
the ration card also (Ex.CW2/C and Ex.CW2/D. Similarly, one EPIC
Form of the Election Commission of India showing the said address filled
was on the record as Ex.PW4/I, duly produced by the Naib Tehsildar Sant
Lal, which also showed the same address. He, accordingly, submitted
that there was sufficient material for the Court to have summoned the
accused and, therefore, at this stage no interference is called for.
Facts of CRM-M-54463-2018
32. The petitioner Sukhbir Kataria, who is accused no.4 in
Criminal Complaint bearing No.74847 dated 19.08.2013 (Annexure P-1)
titled as 'Om Parkash Vs. Parveen Nandal and others' challenges the
summoning order dated 30.11.2013 (Annexure P-2) passed by the JMIC,
Gurgaon, vide which he had been summoned to face trial under Section
420, 467, 468, 471, 120-B IPC. Summoning has not been made under
Section 31 of Representation of People Act, 1950, as in other cases.
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33. The ancillary orders dated 07.04.2018 (Annexure P-4)
passed by the JMIC, Gurgaon whereby the application for discharge had
been dismissed and upheld by the Additional Sessions Judge, Gurugram
dated 06.08.2018 (Annexure P-6) are also subject matter of challenge.
34. The allegations in the complaint qua the petitioner are that he
in collusion with accused no.1 & 2, who are mother and daughter got
prepared one ration card no.406494 at the address i.e. House No.1442,
Near Saini Chaupal, village Gurgaon. The handwriting in the same was
stated to be of accused no.4, which had been confirmed by Smt. Sunita,
present Councilor, Ward no.15. The signatures of accused no.1 were also
not on this ration card. As per the allegations, the ration card had not
been issued by the concerned department and as per D-4 register at Sr.
No.1170 entry was in the name of Tek Chand son of Pakhpal bearing
entry of three members. The electricity bill of some other person by name
of Rajinder Singh had been attached, which was fake for making the vote
in Form No.6 in the column of declaration by which votes had been
made in Booth no.134. Further the case is that the said process was done
by accused no.3, the retired Assistant Food & Supply Officer, who had
put his signatures and seal on the blank ration cards in order to make fake
votes. The Food & Supplies Department is stated to have issued the
ration card in the name of Tek Chand. The blank ration cards had been
provided by accused no.3. The present petitioner is stated to be the
kingpin of the entire episode as a ration card which had been attached
was filled up by the said accused in his own handwriting. Resultantly, by
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getting votes prepared on the basis of forged and false documents, he had
reached to the level of Minister in the Haryana Government. Relevant
portion of the averments made in the complaint thus read as under:-
"In what manner accused no.1 & 2 are an accused:-
It seems that accused no.1 and 2 in collusion with accused no.4
Sukhbir Kataria, got prepared one fake ration card no.406494,
from the address House No.1442, Near Saini Chaupal, Village
Gurgaon because on the same, the entire handwriting is of
accused no.4, which has been confirmed by Smt. Sunita w/o
Randhir Singh, present Councilor, Ward No.15. The
signatures of applicant Parveen Nandal w/o Rajinder Nandal,
are also not there on this ration card. As per the information
sought by the complainant through RTI, this ration card has not
been issued by the concerned department. In D-4 register at Sr.
No.1170, this ration card is in the name of Sh. Tek Chand s/o
Pakhpal, entry of three members is there. It is also mentioned
here that accused no.1 and 2 has electricity bill of some other
person by name of Rajinder Singh, whose account no.C.T 02-
1069-A, has been attached. So, it is also fake and for making
the vote in the column of declaration by the applicant in Form
No.6, the declaration which has been made, the same is self
contradictory. In this manner, election office without any
inquiry, by putting the rules of election office on stake, in
collusion with accused no.1, 2 and 4, has made their votes,
Booth No.134, Vote No.1364, 1365, Identity Card
No.WDC0780692 and WDC0780700.
"In what manner accused no.3 is an accused:-
Accused no.3 Devender Singh Kadyan, Retired A.F.S.O, had
provided blank ration card to accused no.4 Sukhbir Kataria, by
putting his signatures and seal. With which, accused no.4
Sukhbir Kataria, in order to make fake vote of anyone, by
filling the place of resident and number of persons, used the
same as per the convenience. While holding Devender Singh
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Kadyan an accused in such kind of allegations, he has been
declared as an accused by Hon'ble Court of Sh. Ashok Maan,
JMIC, Gurgaon. Such kind of other allegations are also
pending in the court at Gurgaon in State Versus Rakesh, in
which blank ration card containing seal and signatures have
been produced by Rakesh in the Court in case titled State
versus Rakesh. Thousands of ration cards like this have been
made by accused no.3 without giving the application form. As
per Food and Supply department the Ration Card No.406494,
attached by accused no.1 and 2 with Form No.6, is in the name
of Tekchand s/o Bakhpal with entry of three members. From
this it is clearly proved that Devender Singh Kadyan accused
no.3 use to provide blank ration card to accused no.4 by
putting his signatures, in which signatures of ration card holder
accused no.1 are also not there.
"In what manner accused no.4 is an accused:-
Accused no.4 is kingpin of this entire episode because the
ration card which he has attached with the Form no.6 of
accused no.1 and 2 for the purpose of certificates of place of
residence, the same has been filled by accused no.4 with his
own handwriting. This handwriting has been confirmed by
Sunita w/o Randhir Singh, who has remained as Member
Panchyat with accused no.4 since 2002 to 2005. Accused no.4
from Member Panchayat to Srapanch and till the post of
Minister in Haryana Government, has reached to this place by
getting votes prepared on the basis of forged documents."
35. The Magistrate did not send the complaint (Annexure P-1)
under Section 156 (3) Cr.P.C. for registration of FIR and investigation,
vide order dated 19.08.2013 and fixed the case for preliminary evidence
of the complainant.
36. Thereafter, on 14.10.2013, the complainant examined 4
CWs, apart from relying on large number of documents which had been
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appended alongwith the complaint and which would be clear from the
record, details of which, however, had also not been mentioned in
Annexure P-1. The Magistrate while referring to the statements of the
said witnesses and allegations levelled, came to the conclusion that there
was sufficient material on record to proceed against the accused since a
prima facie case was made out, as bogus votes on the basis of forged and
illegal ration cards and false documents had been procured, in conspiracy
to cause injury to the public at large and his rivals in the elections. It was
also observed that multiple votes had been made by accused no.1 & 2,
which is the main plank of argument of counsel for the petitioner that
nothing of the same was on record. Relevant portion of the reasoning
given in the summoning order reads as under:-
"14. At that stage of summoning, the materials on record is not
required to be weighed threadbare with minute details by the
court. On the other hand, at that stage, the material on record
has to be looked into from the angle as to whether there is
sufficient material to proceed against the accused for the
commission of the alleged offences. In other words, it is a
prima facie case which has to be seen by the court at the stage
of summoning and the probative value of the material on
record is not to be assessed from the perspective of a full proof
case. In the instant case, the material as discussed above,
prima facie shows that the accused in conspiracy with each
other procured bogus votes at multiple addresses on the basis
of a forged ration card and such votes would not have been
issued in favour of the accused No.1 & 2 by the competent
authority if it were not deceived by the dishonest intention
emanating from accused No.1 to 6. Since the multiple votes
were procured on the basis of forged and illegal ration card
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bearing No.406494 having the address as # 1442, Near Saini
Chaupal, Gurgaon. Prima facie it appears that the accused in
conspiracy with each other procured false documents with
interest to cause injury to the public at large as well as to the
rivals in the elections and thereby committed an offence of
forgery for the purpose of cheating."
Arguments
37. Senior Counsel for the petitioner has argued that it is not a
case of multiple votes and the impugned order is non-speaking as such
and accused no.6 had also been summoned who was mentioned as a
concerned official. He submitted that CW-1 Smt. Shama Sharma,
Election Kanungo has merely stated that she had seen the record
produced by the accused including the ration card and nobody had been
examined from the office of District Food & Supplies Department. He
further argued that similarly CW-2 Sunita had only talked about the
ration card, whereas CW-3 Rakesh had been only produced to give
evidence against Devender Singh Kadyan, retired Assistant Food &
Supply Officer. Similarly, Om Parkash, complainant had only talked
about the information received under the Right to Information Act, 2005
and that there is no entry in the ration card in question. Thus, he
submitted that photocopies of the documents had been relied on to
summon the petitioner and there was no tenable evidence on record as
such and the summoning order was not justified.
38. Mr. Manish Soni, counsel for the complainant on the other
hand meticulously has referred to the entries made in the ration card from
the copy of the record to submit that entries at Ex.CW2/A and Ex.CW2/B
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were filled up by the petitioner in his own handwriting. He submitted
that stamping on Ex.CW3/A as such was done by accused no.3, the
official, which was a blank ration card given to the petitioner by the said
accused. He further submitted that the witness had deposed as per the
RTI information, which was made available. Ex.CW4/Z-4, the
information qua the ration card could not be supplied, since it was not
available in the record and thus there was sufficient material on the
record to summon the accused. Reliance was also placed upon the
electricity bill in the name of Rajinder Singh (Ex.CW1/F) to submit that
husband of accused no.1 was Rajinder and said electricity bill had
wrongly been used for the purpose of creating the vote. He, accordingly,
submits that documents which were exhibited were true and certified
copies and were admissible under Section 63 of the Indian Evidence Act,
1872 and, therefore, sufficient material as such was before the trial Court
to summon the accused. Reliance was also placed upon Section 311-A
Cr.P.C. that the procedure for comparison of the handwriting of the
accused would only be taken after taking his specimen signatures or
handwriting. Accordingly, reliance was placed upon under Section 80 of
the Indian Evidence Act, 1872 to submit that once the document were
seen by the Court, there is presumption of correctness. He further
submitted that CW-2 Sunita had deposed that she had seen the accused
signing as a Panch and, therefore, there was sufficient material as such on
record that the ration card had been filled up by the petitioner. Once
documents Ex.CW-1/A and Ex.CW-1/M had been proved by CW-1
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Shama Sharma, there was no necessity as such to summon the record
from the District Food & Supplies Department and in such circumstances
he defended the summoning order. He further submitted that the
petitioner was responsible for subverting the electoral process and prima
facie case had been made out not only in one case, but he was also
accused in many other cases and resultantly no such case was made out
for exercising powers under Section 482 Cr.P.C.
Facts of CRM-M-947-2019
39. The petitioners in the present case are accused No.7 to 10 in
the Criminal Complaint bearing No.189 of 2013 (Annexure P-1) titled as
'Om Parkash Vs. Ramesh and others'. They have challenged the same
alongwith summoning order dated 13.06.2014 (Annexure P-2) passed by
the JMIC, Gurgaon, whereby they have been summoned to face trial
under Section 420, 467, 468, 471, 120-B IPC. Similarly, they have also
challenged the order dated 02.01.2019 (Annexure P-3) wherein
application for discharge had been dismissed on the ground that case was
listed for pre-charge evidence of the complainant and the criminal law
can be set into motion by any person and the application had been filed at
a belated stage. It is to be noticed that the complaint as such against
accused no.11 to 14 was dismissed including accused no.12 Sukhbir
Kataria, while no summoning was made under Section 31 of
Representation of People Act, 1950.
40. Allegations qua the present petitioners in the complaint is
that petitioner no.1 Sahdev had got three votes made in Gurgaon and a
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false affidavit had been given qua declaration in Form no.6/8. The said
form had also been wrongly verified by his son Paramjit, petitioner no.3
herein. Similarly, wife of petitioner no.1 was also stated to have made
three votes and allegations were of impersonating and regarding pasting
of photographs.
41. Regarding accused no.9 the allegations were that he had also
got three votes and therefore, forged documents had been given for
giving house addresses etc. Wife of petitioner no.3 who has been arrayed
as petitioner no.4 herein is stated to be guilty of having two votes. The
necessary averments made in the complaint qua them read as under:-
"In which manner accused no.7 is guilty.
Accused no.7 has got three/three identity card which are as
follows:-
1. Sehdev son of Chattar Singh, house no.1388,
Gurgaon booth no.133 Vote no.288 ID Card
no.H/07/61/0141508.
2. Sehdev son of Chattar Singh, house no.917, Hira
Nagar, Gurgaon booth no.104 Vote no.771 ID Card
no.WHCS566638
3. Sehdev son of Chattar Singh by pasting his
photograph, at H.no.1388A, Gurgaon Village, Booth No.133
Vote no.300 ID no.HVV3700424
House no.1388 of Gurgaon Village belongs to accused
no.12 Sukhbir Kataria and accused no.7 has given a false
affidavit qua the declaration in form no.6/8 that he has not been
issued any ID in any Electoral Zone throughout India and
Pararmjit son of accused who is an Advocate at Gurgaon is
fully aware by the law and inspite of this has verified the form
no.6/8 of his father that his father has not been enrolled as a
voter anywhere else in India.
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In which manner accused no.8 is guilty
Accused no.8 Parmeshwari Devi, has got three/three identity
card which are as follows:-
1. Parmeshwari Devi d/o Bhim Singh, house no.1388,
Gurgaon village booth no.133 voter no.279 ID card
no.HVV3166865.
2. Parmeshwari Devi w/o Sehdev, house no.917/23, Hira
Nagar, Gurgaon booth no.104 Vote no.852 ID Card
no.HVV3609484.
3. Parmeshwari who by impersonating as Jaswant Kaur
wife of Anup Singh, by pasting his photograph, at ID
no.JVV3402140 has got made her forged vote whereas original
Jaswant Kaur is enrolled as a voter in booth no.77 as voter
no.98 ID No.WDC0123292 (copy of voter list enclossed) in the
form no.6 of the above accused the documents which have
been appended in the name of Jaswant Kaur and it is possible
for the police to obtain the same from the Election Office.
In which manner accused no.9 is guilty
Accused no.9 Paramjit Singh who is practising as a lawyer in
the court has by using forged documents has got three/three
identity card which are as follows:-
1. Paramjit Singh s/o Sehdev, house no.1388A, Gurgaon
village booth no.133 voter no.299 ID card no.HVV2790681.
2. Paramjit Singh s/o Sehdev, house no.917/23, Hira
Nagar, Gurgaon booth no.104 vote no.854 ID card
no.HVV2790681.
3. Paramjit Singh s/o Sehdev, house no.917/23, Hira
Nagar, Gurgaon booth no.102 vote no.838 ID card
no.HVV3402138.
Apart from this above accused has got prepared forged
documents in respect of accused no.1 to 6 by giving his house
address and has helped them in this regard. It is the police
which can got to know from these accused no.1 to 6 by making
enquiries as to who are the original residents of which place.
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In which manner accused no.10 is guilty
Accused no.10 Parveen w/o Paramjit has got two/two identity
card which are as follows:-
1. Parveen w/o Paramjit, house no.1388A, Gurgaon
village booth no.133 voter no.271 ID card no.HVV2930089.
2. Parveen w/o Paramjit, house no.917/23, Hira Nagar,
Gurgaon booth no.104 voter no.772 ID card no.WDC0047613.
The above accused is guilty in the same manner as
accused no.9 and this is also subject matter of enquiry.
42. On the basis of the evidence produced by the complainant,
the summoning order was passed on 13.06.2014 qua accused no.1 to 10
and it was dismissed qua accused no.11 to 14. Relevant portion of the
summoning order reads as under:-
"Accused No.7 to 10 are family members. The complainant
has placed on record voter list Ex.CW1/V page 73,
Ex.CW1/W page 75, Ex.CW1/X page 77, Ex.CW1/Y page
79, Ex.CW1/Z page 81 and Ex.CW1/ZA page 83. These
exhibits Ex.CW1/V to Ex.CW1/ZA are the voter lists of
Booth No.133, 104, 102, 148 and 77, respectively. The
perusal of the said voter lists shows that accused No.7 is
having his vote in Booth No.133 at Serial No.288 and his
house number is 1388. The accused No.7 is also having vote
in Booth No.104 at serial No.771 wherein his house number is
917. The complainant has alleged that the accused no.7 is also
having another vote in Booth No.133 at serial No.300 where
the photograph of accused No.7 has been affixed. Similarly,
accused No.8 Parmeshwari Devi is having her vote in Booth
No.133 at serial No.279 wherein her house number is
mentioned as 1388. She is also having her vote in Booth
No.104 at serial No.852 wherein her house number is 917/23.
The complainant has alleged that she is also having vote at
serial No.863 in the name of Jaswant Kaur whereas the actual
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vote of Jaswant Kaur is in Booth No.77 at serial No.98. The
accused No.9 Paramjeet is having his vote in Booth No.133 at
serial No.299 wherein the house number mentioned in 1388A.
Another of accused No.9 is in Booth No.104 at serial No.854,
house No.917/23. His another vote which has been deleted
was in Booth No.102 at serial No.838. The accused No.10
Parveen is also having two votes, one in Booth No.133 at
serial No.271, house No.1388 and another in Booth No.104 at
serial No.772, house No.917/23 which shows that the accused
No.7 to 10 have got their more than one votes prepared on the
basis of different residential addresses and which one is true
needs to be answered by the accused persons. Accordingly,
there are also sufficient grounds for summoning the accused
No.7 to 10 under Sections 420, 467, 468, 471 IPC.
However, there is nothing incriminating on record to connect
the accused No.12 Sukhbir Singh with the accused No.1 to 10
except that he is relative of accused No.7 to 10. Further the
complainant though alleged in his complaint that the
handwriting on the documents obtained under RTI appear to
be of accused No.12 but he failed to depose in this regard.
Similarly, the complainant has alleged in his complaint that
the accused No.11 has issued blank ration cards with his stamp
and signatures but the complainant failed to identify the
signatures of accused No.11. Again the complainant failed to
depose that signatures on form No.6/8 are of accused No.13.
No other witness has been examined by the complainant to
identify the handwriting of accused No.11 to 13.
Accordingly there are no sufficient grounds for summoning
the accused No.11 to 13 on the mere apprehension of the
complainant as to their handwriting without being supported
by any evidence.
The involvement of any other person has not come on record
during investigation under Section 202 Cr.P.C.
In view of my above discussion, the accused No.1 to 10 are
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ordered to be summoned to answer the allegations under
Section 420, 467, 468, 471 read with section 120B of IPC.
Therefore, the accused No.1 to 10 be summoned for
16.07.2014 on filing of necessary PF and copies of complaint
etc.
However, no summoning of the accused persons is made
under Section 31 of the Representation of People Act, 1950.
The complaint qua accused No.11 to 14 is hereby dismissed."
Arguments
43. Mr. Deepender Singh, counsel for the petitioners, has
accordingly, argued that the case was sent for investigation under Section
202 Cr.P.C. and as per the order dated 02.12.2013, the adverse material
was against other accused no.1 to 6 and no material has come on record
in the investigation by the police qua the petitioners and incomplete
report had been given subsequently on 01.05.2014. It is, accordingly,
submitted that no offence as such was made out under IPC as only one
witness was examined, the complainant himself and only photocopies of
the documents had been produced, which were exhibited. Thus, there
was no ground for summoning the accused under the provisions of IPC.
He has referred to the form filled by petitioner no.1 that he had given a
declaration that his vote be deleted from one address in Gurgaon i.e.
House No.917/23, Hira Nagar, Gurgaon. He further submitted that thus,
there is no forgery as such and only an offence under Section 31 of
Representation of People Act, 1950 would be made out. He further
argued that limitation is only of one year in such a case and, therefore,
provisions of Section 468 Cr.P.C. would come into play as offences were
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of 2009, whereas the complaint was filed in the year 2013, thus, would be
barred and liable to be quashed on this ground. He has meticulously
referred to photocopy of the record to submit that merely having two
votes as such on account of family members would not make out an
offence under Section 17 and 31 of Representation of People Act, 1950.
False declaration given would not be an offence and, he thus, prayed for
quashment of the complaint while placing reliance upon judgment passed
in 'Rajesh Joshi Vs. State through the Electoral Registration Officer',
2016 (2) RCR (Civil) 847.
44. Mr. Manish Soni, counsel for the complainant on the other
hand has painstakingly taken this Court through the material which was
brought on record before the Magistrate to submit that on account of
incomplete report and the Government officials not cooperating, the
Court had issued notice to the concerned persons, on account of the
statement of the Investigating Officer. Resultantly, Clerk of Tehsildar
(Elections) had been summoned, since the police official had registered a
DDR No.20 on 25.11.2013 that government officials were being
pressurised not to give certified copy of the record. He further submitted
that in pursuance of the same, information was brought by the concerned
officials as to the different votes, but the photo of petitioner no.1 was the
same. Reference was also made to form filled by petitioner no.1 to
submit that he purposely had not given the details of the earlier votes,
which had to be deleted and, therefore, argument raised by counsel for
the petitioner that merely having two votes would not be an offence is not
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justified. It is submitted that prima facie material was brought on record
to show that more than one vote had been created by using false
documents. He further pointed out from the voter list that name of
Parmeshwari petitioner no.3 is at Sr. no.279 for booth no.133, wherein
she had been shown as daughter of Bhim Singh being the sister of the
main accused Sukhbir Kataria, whose vote had also been shown at
Sr.no.295 both being residents of House No.1388 of village Gurgaon. It
is submitted that at the same time she had been shown in the voter list of
Hira Nagar at Sr.no.852, wherein she was shown as wife of Sahdev at
house no.917/23. Similarly, reliance is placed upon the fact that there is a
deletion done at one place in Ex.CW1/Y that one Jaswant Kaur's vote was
there and she had been shown as wife of Anup Singh and Parmeshwari
Devi had also been shown under a deleted vote wherein her photograph
had been pasted as wife of Anup Singh. It is submitted that thus there is
prima facie evidence on record and the petitioners are closely related to
the main conspirator Sukhbir Kataria, who has unfortunately got a order
in his favour by way of dismissal of complaint against him. It is
submitted that Parmeshwari Devi is the real sister of the said accused,
whereas other accused are close family members being brother-in-law
etc. and they are liable to be prosecuted and no ground is made out for
interference under Section 482 Cr.P.C.
Facts of CRM-M-21528-2019
45. The petitioners in the present case are accused No.1 to 5 in
the Criminal Complaint bearing No.96 30.09.2013 (Annexure P-1) titled
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as 'Om Parkash Vs. Arvind and others'. They have challenged the same
alongwith summoning order dated 02.11.2015 (Annexure P-2) passed by
the JMIC, Gurgaon, whereby they have been summoned to face trial
under Section 420, 467, 468, 471, 120-B IPC alongwith accused no.6 &
8. However, they have not been summoned under Section 31 of
Representation of People Act, 1950.
46. Accused no.6 happens to be Sukhbir Kataria the kingpin of
all criminal prosecution, which is subject matter of discussion in this
bunch of cases. The said person has somehow not opted to challenge the
said summoning order though in the other cases he has done so. The
challenge is also raised to the order dated 13.03.2019 (Annexure P-4)
whereby first revision as such was dismissed by the Additional Sessions
Judge, Gurgaon and the summoning order was upheld. The revisional
Court came to the conclusion that the argument that the statements of
witnesses have not been recorded on oath, were not tenable, as the
statements were signed by the witnesses as well as by the Presiding
Officer. It was held to be a mere procedural irregularity and not such a
illegality which could vitiate the entire proceedings. The perusal of case
file had shown that there were several documents, particularly voter cards
of one person at different addresses and, therefore, it was held that
sufficient material was present for summoning the accused as a prima
facie case was to be seen at the stage of summoning.
47. A perusal of the complaint as such against the petitioners
would go on to show that the allegations qua five petitioners herein were
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that they had got prepared different identity cards on the basis of fake
documents at House No.1845/3, Rajeev Nagar, Gurgaon and thus, got
multiple votes. The same was on the basis of ration card bearing
no.602480, which was in the name of Bimla Devi wife of Hari Krishan at
address of House No.1845/3, Rajeev Nagar, Gurgaon, whereas the correct
ration card was made on the address of 1845, 8 Biswa, Gurgaon.
Allegations were made that husband of petitioner no.3-Kavita, namely
Baljeet Singh was the Personal Secretary of accused no.6 Sukhbir Kataria
and similarly petitioner no.5 Suman was also wife of Sumer, who was
another Personal Secretary. The relevant portions of the complaint read as
under:-
"In what manner accused no.1 is an accused:-
Accused no.1-Arvind Kumar has got prepared three identity
cards on the basis of fake documents.
1. Arvind Kumar from House No.1845/3, Rajeev
Nagar, Gurgaon, Booth No.18, Vote No.599, Identity card
No.WDC360768.
2. Arvind Kumar son of Hari Kishan from House
No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote
No.607, Identity card No.HVV3220860.
3. Arvind Kumar son of Kari Kishan from House
No.1845, 8 Biswa, Gurgaon Village, Booth No.133, Vote
No.793, Identity card No.WDC106702.
Accused by committing forgery with Ration Card no.602480
which has been made in the name of Bimla Devi wife of Hari
Kishan at address of House No.1845/3, Rajiv Nagar, Gurgaon,
above Ration Card was made on the address of 1845, 8 Biswa,
Gurgaon Village and by getting prepared their fake identity
cards from same address, provided benefit to accused no.6 in
the Vidhan Sabha election held in 2009. In the forgery of
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ration card, 8 Biswa Gurgaon Village, which has been written,
the same seems to be written by accused no.6, this is matter of
deep inquiry.
In what manner accused no.2 is an accused:-
Accused no.2 Sovind son of Hari Kishan, has got prepared
following two Identity cards on the basis of fake documents:-
1. Sovind son of Hari Kishan from House
No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote
No.605, Identity card No.HVV3220832.
2. Sovind son of Hari Kishan from House
No.1845, 8 Biswa, Gurgaon village, Booth No.133, Vote
No.792, Identity card No.WDC1076686.
The accused by committing forgery with Ration Card
No.602480, which is made in the name of Bimla Devi wife of
Hari Kishan at address House No.1845/3, Rajeev Nagar,
Gurgaon, the above Ration Card was made on the address
1845, 8 Biswa, Gurgaon Village and by getting prepared their
respective fake identity cards from same address, provided
benefit to accused no.6 in the Vidhan Sabha election held in
2009. In the forgery of ration card, 8 Biswa Gurgaon Village,
which has been written, the same seems to be written by
accused no.6, this is matter of deep inquiry.
In what manner accused no.3 is an accused:-
Accused no.3 by using fake documents, has got prepared two
following identity cards:-
1. Kavita wife of Baljeet Singh House No.1845/3,
Rajeev Nagar, Gurgaon, Booth No.18, Vote No.600.
2. Kavita wife of Baljeet Singh House No.1845/3,
Rajeev Nagar, Gurgaon, Booth No.18, Vote No.603.
Form No.6/8 of accused no.3, which are filled for making the
vote, have been made by committing forgery like accused no.1
and 2 obtaining those forms from District Election Office and
conducting deep inquiry on the same that which respective
officers are involved in this forgery, it is matter of deep
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investigation. We are only producing the voter list along with
this complaint. The important point in the same is that Baljeet
Singh who is husband of accused no.3, he is personal
secretary of accused no.6 and in this kind of offence, Baljeet
Singh son of Ram Chander, has been declared as an accused
by the Court of Hon'ble Sh. Sukhpreet Singh.
In what manner accused no.4 is an accused:-
Accused no.4 by using fake documents, has got prepared
following two identity cards:-
1. Jai Parkash son of Hawa Singh, House
No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote
No.608.
2. Jai Parkash son of Hawa Singh, House
No.1845/3, Rajeev Nagar, Gurgaon, Booth No.18, Vote
No.1174.
Form No.6/8 of accused no.4, which are filled for making the
vote, have been made by committing forgery like accused no.1
and 2 obtaining those forms from District Election Office and
conducting deep inquiry on the same that which respective
officers are involved in this forgery, it is matter of deep
investigation. We are only producing the voter list along with
this complaint.
In what manner accused no.5 is an accused:-
Accused no.5 by using fake documents, has got prepared
following two identity cards:-
1. Suman wife of Sumer, House No.1845/3,
Rajeev Nagar, Gurgaon, Booth No.18, Vote No.613.
2. Suman wife of Sumer, House No.1845, 8 Biswa,
Gurgaon village, Booth No.133, Vote No.770.
Form No.6/8 of accused no.5, which are filled for making the
vote, have been made by committing forgery like accused no.1
and 2 obtaining those forms from District Election Office and
conducting deep inquiry on the same that which respective
officers are involved in this forgery, it is matter of deep
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investigation. We are only producing the voter list along with
this complaint. The important point in the same is that Sumer
Singh who is husband of accused no.5 and is stated to be
personal secretary of accused no.6 and in this kind of offence,
Sumer Singh son of Ram Chander, has been declared as an
accused by the Court of Hon'ble Sh. Sukhpreet Singh."
48. The complaint (Annexure P-1) was not sent to the police for
registration of FIR and investigation, though a request had been made on
07.09.2013 and case was fixed for preliminary evidence of the
complainant. The complainant examined himself on 31.10.2013 and
thereafter examined three witnesses on 16.05.2014. The summoning
order was passed on 02.11.2015 (Annexure P-2). The reasoning given in
the said order reads as under:-
"12. At that stage of summoning, the materials on record is not
required to be weighed threadbare with minute details by the
Court. On the other hand, at this stage, the material on record
has to be looked into from the angle as to whether there is
sufficient material to proceed against the accused for the
commission of the alleged offences. In other words, it is a
prima facie case which has to be seen by the court at the stage
of summoning and the probative value of the material on record
is not to be assessed from the perspective of a full proof case.
In the instant case, the material as discussed above, prima facie
shows that the accused in conspiracy with each other procured
bogus votes at multiple addresses on the basis of forged ration
card and such votes would not have been issued in favour of
the accused no.1 to 6 and 8 by the competent authority if it
were not deceived by the dishonest intention emanating from
accused no.1 to 6 and 8. Since the multiple votes were
procured on the basis of forged and illegal ration card. Prima
facie it appears that the all accused except in accused no.7 and
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9 in conspiracy with each other procured false documents with
interest to cause injury to the public at large as well as to the
rivals in the elections and thereby committed an offence of
forgery for the purpose of cheating.
13. In view of aforesaid, the accused no.1 to 6 and 8 are
summoned under Section 420, 467, 468, 471, 120-B IPC, on
filing of PF etc., for 18.12.2015. However, no prima facie case
for summoning under Section 31 of RP Act, 1950 is made out
against the accused persons."
Arguments
49. Senior Counsel for the petitioner has vehemently argued
while referring to the photocopy of the record which has been summoned
that CW-1 Shama Sharma had not got the summoned record, but only
stated that she had seen the copy of the record, which was stated to be
correct. Therefore, on the basis of the said fact he submitted that once the
original form no.6 had not been brought the Court was not justified in
accepting the statement. Therefore, only the statement of the complainant
had been relied while summoning the accused. It is, accordingly,
submitted that the statements as such of the other witnesses were not on
oath and the statements of official witnesses alongwith Assistant Food &
Supply Officer, Anil Kumar, CW-3 Om Parkash and CW-4 Rakesh
Kumar, were not on oath. It is, accordingly, contended that ration card
Ex.CW3/F bearing no.602480 were of two different addresses, which
were all true copies and no originals alongwith the record had been
summoned. It is submitted that voter lists were also not exhibited and
were only photocopies and, therefore, he relied on Section 200 Cr.P.C., to
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submit that the Magistrate has to examine on oath the complainant and
the witnesses present and cognizance should only be taken if there were
some admissible evidence on record. Reliance is placed upon the
judgment of the Apex Court in 'Krishna Lal Chawla Vs. State of Uttar
Pradesh and another' (2021) 5 SCC 435 to submit that complaint
should not have been entertained and that it was the duty of the
Magistrate as such to ensure that frivolous litigation was not initiated by
the complainant.
50. Mr. Soni counsel for the complainant on the other hand has
pointed out that on both the ration cards in question Ex.CW3/F and
CW2/A, the addresses are different, wherein in one House No.1845/3,
Rajeev Nagar, Gurgaon had been mentioned and on the other hand in the
other one it has been shown as House No.1845, 8 Biswa, Gurgaon
village. It is submitted that the different addresses as such have also been
noticed by the Magistrate while noticing the writing in the address
(Ex.CW4/A) which was stated to be have been done by Sukhbir Kataria,
in view of the statement of CW-4 Rakesh Kumar. It is further contended
that the photographs are also of same set of persons in both the ration
cards. Form no.6 which was filled up by petitioner no.1 shows address of
8 Biswa, Gurgaon village. It is submitted that the other documents were
produced in the Court as certified copies and were part of the official
record and Section 63 of Indian Evidence Act, thus, would be applicable.
Reference is made to the voter list to show that the petitioners name were
shown for Booth no.18 at Serial No.600, 605, 607, 608, 613, whereas
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petitioners No.1 and 3 were also shown having another vote at Serial
No.599 and 603. Similarly the name of Suman petitioner no.5 was also
figuring at Serial No.770 for booth no.18. Accordingly, reliance was
placed upon the order of the Sessions Judge 13.03.2019 (Annexure P-3)
to submit that there is a mere irregularity and Section 465 Cr.P.C. would
be applicable. Reliance was also placed upon Section 397 (3) Cr.P.C.,
that there was a bar to file second revision and, therefore, powers under
Section 482 Cr.P.C., would not be utilized for the said purpose, while
placing reliance upon the judgment passed in 'Prem and others Vs.
Budh Ram' 2000 Crl. Law Journal 790.
Facts of CRR-2265-2019
51. The petitioner in the present case is the complainant Om
Parkash, who is aggrieved by the order of the learned Additional Sessions
Judge, Gurugram dated 10.05.2019 who while exercising the revisional
powers had set aside the order dated 12.11.2018 (Annexure P-1),
whereby charge had been framed against the accused Sukhbir Kataria.
While allowing the revision, it was held that no prima facie case is made
out for offences under Sections 420, 467, 468, 471, 120-B IPC, but only a
prima facie case for the offence punishable under Section 31 of the
Representation of People Act, 1950 is made out. Thus, in the present set,
a reverse proposition as such is inter se subsisting to the extent that in the
other set of cases the summoning order was never passed under Section
31 of the 1950 Act.
52. The allegations in the FIR No.261 dated 06.05.2015 against
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the accused Sukhbir Kataria were that his co-accused, one Pardeep was
underage and his Form No.6 was filled up by him and there was no
recommendation of the Block Level Officer and the signatures of the
AERO all appears to be forged. Neither the residential house nor the
original ration card or school certificate had been verified. After
investigation the report under Section 173 Cr.P.C. (Annexure P-2) was
submitted, in which relevant documents seized during investigation were
relied upon. It was noticed that Pardeep's date of birth is 11.04.1992 as
per his school record, but it had been mentioned as 11.04.1990 The
tampering was stated to have been done to show his age proof for
obtaining the Voter ID. The same was stated to be in collusion with the
main accused Sukhbir Kataria, the MLA candidate from his village with
the aid of Adarsh Bala appointed as BLO in the election department.
53. Similar allegations were regarding one Manoj though he
never joined investigation and the investigation qua him is stated to be
incomplete whose name had been recommended by one Satbir who is
stated to be his uncle. Apparently, the police in the challan recorded the
statement of Pardeep and also an affidavit which he had submitted
regarding the allegations of tampering with the mark-sheet and by
scanning and changing the date of birth and shifting the blame upon
Sukhbir Kataria. Therefore, challan was presented against accused
Sukhbir Kataria, Pardeep and Adarsh Bala. The charge was framed by
the JMIC on 12.11.2018, wherein it was wrongly mentioned that one
Manoj Kumar was minor, but to get undue advantage in the Assembly
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Election of Gurugram, accused Sukhbir Kataria had prepared the forged
ID proof and mark-sheet of Manoj by altering his date of birth.
Resultantly, the Court dismissed the application for discharge and came
to the conclusion that a prima facie case punishable under the provisions
of IPC and Section 31 (wrongly mentioned as Section 38) of the
Representation of People Act, 1950 is made out.
54. The said order was challenged in revision by one of the
accused Sukhbir Kataria and the reasoning to set aside the said order was
that at the time of framing the charge the Court has not to make roving
inquiry and assess and weigh the offence meticulously. It has merely to
see whether sufficient material is there on record to proceed against the
petitioner and if the material on record is unrebutted and does not make
out a prima facie case the charge is not to be framed. While referring to
the provisions of Section 415, 420, 467, 471, 29 and 30 IPC, it was held
that Court cannot act merely as post office or mouth piece of prosecution
and if two views are possible, the Judge has a right to discharge the
accused. Reference as such had not been made by the JMIC in respect of
Pardeep whose date of birth had been changed. Rather the name of Manoj
Kumar whose Form No.6 was got filled in the handwriting of the main
accused had been taken into consideration and the crucial facts had not
been taken into account. It was held that there is no delivery of property
to the accused and any inducement. Form No.6 cannot be termed as a
document of valuable security and prima facie there is no intention of the
person filling it to cause damage or injury to the public or to any person.
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It was noticed that original Form No.6 was not available, though the
original mark-sheet of Pardeep was on the file and there is no alteration,
addition or deletion in the original certificate. Adarsh Bala, who was the
BLO was stated to be responsible for verification of the details, but the
form was also signed by the Supervisor and by Election Registration
Officer and the form may have been verified rightly or wrongly by her,
which is stated to have been submitted by accused Pardeep. Reference
was also made to the observations of the learned Additional Sessions
Judge, while granting the anticipatory bail and accordingly a finding was
recorded that only offence under Section 31 of the Representation of
People Act, 1950 is made out.
Arguments
55. Counsel for the complainant has thus rightly submitted that
the order is not justified, while referring to the photocopy of the record,
which was summoned. Reliance was placed upon the Form No.6, which
had been filled out in which the date of birth was shown as 11.04.1990,
which had also been signed by Adarsh Bala. It is pointed out that the
Middle Examination Certificate showed the year of birth as 1990 and the
said document had been attached with Form No.6. It is further pointed
out that the original of the same was also on the record which showed the
year of birth as 1992. The recovery of the same had been effected from
Pardeep during the investigation. The certificate from Santoshi High
School, Gurugram would go on to show that the year of birth was also
1992. It is submitted that a disclosure statement as such had also been
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made by the accused, which has been appended also as an annexure with
the present petition in which accused Pardeep had stated that Sukhbir
Kataria had increased the age by two years in the certificate and also
pressurised him for casting the fake/forged vote during 2009 elections.
56. Reliance was also placed upon the fact that the card was got
issued from the office of the Election Commission of India and there was
also an affidavit dated 06.10.2015 given by the accused, whereby onus
had been shifted to the present accused Sukhbir Kataria and as recorded
that vote was also cast by Pardeep. It is, thus, argued that in such
circumstances it was not justified for the revisional Court as such to set
aside the order of framing charge under the provisions of IPC, since there
was prima facie evidence on record. The provisions of IPC were referred
to point out that ingredients of offences were clearly made out and the
order was not justifiable.
57. Mr. Narwana, on the other hand representing the main
accused has submitted that the original form no.6 was not on record and
there was no recovery made from the accused and there was no
admissible evidence available on record for framing of charge. The
credibility of the complainant was sought to be shattered on the fact that
he is a life convict and the Magistrate had also wrongly framed the charge
while referring to the case of the co-accused against whom investigation
is yet to be completed. Resultantly, he argued that even admissibility of
the statements made by the co-accused as such could not be taken into
consideration and also the affidavit whereby he shifted the blame on the
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accused Sukhbir Kataria. Resultantly, reliance was placed upon the
judgment of the Apex Court passed in Suresh Budharmal Kalani
(supra) to argue that mere confession of the co-accused as such and the
confessional statements could not be used as a basis of framing of charge
and even if it it was unrebutted it was a case of discharge.
Discussion
58. In the present facts and circumstances as noticed above
proceedings are emanating from six complaints filed, whereas one case
arises out of police proceedings. The basic principle which is to be seen
in the complaint cases firstly what is the power and jurisdiction of the
Magistrate as such when he issuing summons and taking cognizance of
the offenders and the parameters of jurisdiction of the Court under
Section 482 Cr.P.C.
59. Under Section 2 (d) of the Cr.P.C. the definition of
complaint is given whereas Section 2(g) defines an enquiry which is to be
conducted other than a trial, by the Magistrate. The same read as under:
"2 (d) "complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action under
this Code, that some person, whether known or unknown, has
committed an offence, but does not include a police report.
xxxx xxxx xxxx
(g) "inquiry" means every inquiry, other than a trial,
conducted under this Code by a Magistrate or Court;"
60. A perusal of the above would go on to show that when action
is sought to be taken against the known persons who have committed a
offence, the same is to be enquired into by the Court. Chapter-XIV of
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Cr.P.C. contains Section 190, which shows that the the Magistrate is
empowered to take cognizance of an offence in 3 eventualities of an
offence;
(i) upon receiving of a complaint of facts which constitutes
such offence is one situation;
(ii) secondly upon a police report of such facts and
(iii) thirdly upon information received from any person
other than a police officer or upon his knowledge that such
offence has been committed.
61. Thus, these are the conditions in which summoning of an
accused person can take place. A Magistrate taking cognizance of the
offence on a complaint under Chapter-XV under Section 200, is required
to examine upon oath the complainant and the witnesses present, if any,
and the substance of such examination is to be reduced in writing and to
be signed by the complainant and the witnesses and also by the
Magistrate.
62. Under Section 202, the Magistrate has the power to enquire
into the case himself or direct an investigation to be made by a police
officer or by such person he may think fit, for the purpose of deciding
whether there is sufficient ground for proceeding. The consideration of
the statements on oath, if any, of the complainant and the witnesses while
keeping in mind the result of the enquiry or investigation has to be done.
Power also vests with the Magistrate to dismiss the complaint if he finds
that there is no ground for proceeding. However, for such cases, he has
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to record his reasons for doing so under Section 203.
63. The summoning order is passed under Chapter-XVI and
process is issued when the Magistrate comes to the opinion that there is
sufficient ground for proceeding. Trial of warrant cases by the Magistrate
is provided under Chapter-XIX which would be applicable in six cases
herein. Under Section 244, when the accused appears, the Magistrate is to
hear the prosecution and take such evidence as may be produced in
support of the prosecution and applies to cases instituted otherwise than
the police report. After taking all the evidence referred to in Section 244,
the Magistrate has an option under Section 245 to discharge the accused,
if no case is made out against him on the unrebutted evidence by
recording reasons that his conviction would not be warranted. However,
where there is ground for presuming that the accused has committed an
offence triable under the said Chapter, he will try the accused by framing
a charge in writing against the said accused, under Section 246. Liberty
is also given to cross-examine any witness of the prosecution whose
evidence has been taken and the witnesses can be recalled after cross-
examination for re-examination by the accused. It is, thereafter, under
Section 247, the evidence of the defence can be called upon and then the
provisions for acquittal or conviction follow.
64. Thus, the procedure prescribed gives sufficient liberty to the
Magistrate to enquire into the complaint and take into consideration not
only the facts as stated in the complaint but also the statement of the
witnesses for the purpose of enquiry to issue process and take cognizance
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of all the offences which had been allegedly committed. In Suman Vs.
State of Rajasthan & another 2009 (4) Crimes 205, it was held by the
Supreme Court that it was for the Court to proceed against such person if
from the evidence collected or produced in the course of any enquiry and
the trial of offence, it was prima facie of the opinion that the person had
committed an offence and he could be tried along with other accused.
65. In the case of in Bhushan Kumar & another (supra), it has
been held that it is not for the High Court to substitute its own discretion
for that of the Magistrate who had decided to summon the accused and to
examine the case on merits. Reliance was placed upon the earlier decision
in Smt.Nagawwa Vs. Veeranna Shivalingappa Konjalgi & others
(1976) 3 SCC 736.
66. Similarly, in Sunil Bharti Mittal (supra), the Supreme
Court has held that the Magistrate is deemed to have taken cognizance of
the offence and even if the offender is not known or named when the
complaint is filed or when FIR was registered and his name may transpire
during investigation or afterwards. It was, accordingly, held that the
Magistrate has not only powers to issue process in police cases against
persons who were not charge-sheeted provided that there is sufficient
material to show the said persons involvement on an independent
application of mind by the Court. While discussing the provisions of
Section 204 Cr.P.C., which are pertaining to the complaint cases herein, it
was held that on the examination of the complainant and his witnesses or
report of enquiry, if a prima facie case is made out, it also give powers to
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the Court to issue process. Whether the person is likely to be convicted
or not, was not a ground not to issue process and only due application of
mind was stated to be the sole consideration. If the same had been done
and the proper satisfaction was there, the summoning order would be held
to be justified. Relevant portions of the judgment read as under:
"47. We have already mentioned above that even if the CBI
did not implicate the appellants, if there was/is sufficient
material on record to proceed against these persons as well,
the Special Judge is duly empowered to take cognizance
against these persons as well. Under Section 190 of the Code,
any Magistrate of First Class (and in those cases where
Magistrate of the Second Class is specially empowered to do
so) may take cognizance of any offence under the following
three eventualities:
(a) upon receiving a complaint of facts which constitute
such offence;
(b) upon a police report of such facts; and
(c) upon information received from any person other than
a police officer, or upon his own knowledge, that such
offence has been committed.
This Section which is the starting section of Chapter XIV is
subject to the provisions of the said Chapter. The expression
"taking cognizance" has not been defined in the Code.
However, when the Magistrate applies his mind for
proceeding under Sections 200-203 of the Code, he is said to
have taken cognizance of an offence. This legal position is
explained by this Court in Chief Enforcement Officer v.
Videocon International Ltd. in the following words: (SCC
p.499, para 19)
"19. The expression 'cognizance' has not been defined
in the Code. But the word (cognizance) is of indefinite
import. It has no esoteric or mystic significance in
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criminal law. It merely means 'become aware of' and
when used with reference to a court or a Judge, it
connoted 'to take notice of judicially'. It indicates the
point when a court or a Magistrate takes judicial notice of
an offence with a view to initiating proceedings in respect
of such offence said to have been committed by someone.
20. 'Taking Cognizance' does not involve any formal
action of any kind. It occurs as soon as a Magistrate
applies his mind to the suspected commission of an
offence."
48. Sine qua non for taking cognizance of the offence is the
application of mind by the Magistrate and his satisfaction that
the allegations, if proved, would constitute an offence. It is,
therefore, imperative that on a complaint or on a police report,
the Magistrate is bound to consider the question as to whether
the same discloses commission of an offence and is required
to form such an opinion in this respect. When he does so and
decides to issue process, he shall be said to have taken
cognizance. At the stage of taking cognizance, the only
consideration before the Court remains to consider judiciously
whether the material on which the prosecution proposes to
prosecute the accused brings out a prima facie case or not.
49. Cognizance of an offence and prosecution of an offender
are two different things. Section 190 of the Code empowered
taking cognizance of an offence and not to deal with
offenders. Therefore, cognizance can be taken even if
offender is not known or named when the complaint is filed or
FIR registered. Their names may transpire during
investigation or afterwards.
50. Person who has not joined as accused in the charge-sheet
can be summoned at the stage of taking cognizance under
Section 190 of the Code. There is no question of applicability
of Section 319 of the Code at this stage (See SWIL Ltd. v.
State of Delhi. It is also trite that even if a person is not named
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as an accused by the police in the final report submitted, the
Court would be justified in taking cognizance of the offence
and to summon the accused if it feels that the evidence and
material collected during investigation justifies prosecution of
the accused (See Union of India v. Prakash P. Hinduja and
another). Thus, the Magistrate is empowered to issue process
against some other person, who has not been charge-sheeted,
but there has to be sufficient material in the police report
showing his involvement. In that case, the Magistrate is
empowered to ignore the conclusion arrived at by the
investigating officer and apply his mind independently on the
facts emerging from the investigation and take cognizance of
the case. At the same time, it is not permissible at this stage to
consider any material other than that collected by the
investigating officer.
51. On the other hand, Section 204 of the Code deals with the
issue of process, if in the opinion of the Magistrate taking
cognizance of an offence, there is sufficient ground for
proceeding. This Section relates to commencement of a
criminal proceeding. If the Magistrate taking cognizance of a
case (it may be the Magistrate receiving the complaint or to
whom it has been transferred under Section 192), upon a
consideration of the materials before him (i.e., the complaint,
examination of the complainant and his witnesses if present,
or report of inquiry, if any), thinks that there is a prima facie
case for proceeding in respect of an offence, he shall issue
process against the accused.
52. A wide discretion has been given as to grant or refusal of
process and it must be judicially exercised. A person ought
not to be dragged into Court merely because a complaint has
been filed. If a prima facie case has been made out, the
Magistrate ought to issue process and it cannot be refused
merely because he thinks that it is unlikely to result in a
conviction.
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53. However, the words "sufficient grounds for proceeding"
appearing in the Section are of immense importance. It is
these words which amply suggest that an opinion is to be
formed only after due application of mind that there is
sufficient basis for proceeding against the said accused and
formation of such an opinion is to be stated in the order itself.
The order is liable to be set aside if no reason is given therein
while coming to the conclusion that there is prima facie case
against accused, though the order need not contain detailed
reasons. A fortiori, the order would be bad in law if the reason
given turns out to be ex facie incorrect.
67. In Sonu Gupta (supra), the dispute was pertaining to
offence under Section 466, 468, 471 IPC arising out of a matrimonial
alliance and the forgery committed regarding the FIR pertaining to
Sections 498A and 406 IPC. The Magistrate had summoned the accused
on the basis of the complaint. The learned Sessions Judge had upheld the
summoning order qua one set of accused, but set aside the same against
another set. The matter was taken to the High Court, wherein the
summoning order of the Magistrate was also set aside with directions to
appear before the JMIC for adducing evidence. It was held that the
complainant had liberty to produce alleged documents which could prove
forgery and send the same to the expert for examination of the documents
and signatures of the complainant. Resultantly, it was held by the Apex
Court that at the time of summoning and taking cognizance, the
Magistrate has only to apply his mind whether prima facie case is made
out and he is not required to evaluate the material or evidence of the
complainant. The exercise to find out whether the materials would lead
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to conviction or not was not, to be gone into. Resultantly, it was held that
the High Court had erred by issuing such directions and has even
considered to evaluate the defence case and it was not the appropriate
stage. Accordingly, the same was set aside restoring the summoning order
and also setting aside the order of the Sessions Judge, wherein
summoning order was set aside qua one set of accused. Relevant portion
of the said judgment reads as under:-
"7. Considering the stage at which the criminal complaint is
pending and the nature of proposed order, this Court would not
like to express any definite opinion on the merits of the
allegations made in the complaint petition or upon the defence
taken by the accused persons before the courts below or in this
Court lest it prejudices one or the other party in future.
8. Having considered the details of allegations made in the
complaint petition, the statement of the complainant on solemn
affirmation as well as materials on which the appellant placed
reliance which were called for by the learned Magistrate, the
learned Magistrate, in our considered opinion, committed no
error in summoning the accused persons. At the stage of
cognizance and summoning the Magistrate is required to apply
his judicial mind only with a view to take cognizance of the
offence, or, in other words, to find out whether prima facie
case has been made out for summoning the accused persons. At
this stage, the learned Magistrate is not required to consider the
defence version or materials or arguments nor he is required to
evaluate the merits of the materials or evidence of the
complainant, because the Magistrate must not undertake the
exercise to find out at this stage whether the materials will lead
to conviction or not."
68. Similarly, in the case of Afroz Mohammed Hasanfatta
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(supra), the power of the Courts to take cognizance was discussed both
on the police report and in cases instituted other than a police report. It
was, accordingly, held that the Court is not required to evaluate the
evidence on its merits and whether there is sufficient material to record a
conviction or not, was not to be gone into and the Court has not to
evaluate the evidence at that stage. The relevant portion of the said
judgment reads as under:
"20. In a case instituted on a police report, in warrant cases,
under Section 239 Cr.P.C., upon considering the police report
and the documents filed along with it under Section 173
Cr.P.C., the Magistrate after affording opportunity of hearing
to both the accused and the prosecution, shall discharge the
accused, if the Magistrate considers the charge against the
accused to be groundless and record his reasons for so doing.
Then comes Chapter XIX-C-Conclusion of trial-the
Magistrate to render final judgment under Section 248 Cr.P.C.
considering the various provisions and pointing out three
stages of the case. Observing that there is no requirement of
recording reasons for issuance of process under Section 204
Cr.P.C., in Raj Kumar Agarwal v. State of U.P. and another
1999 Cr.LJ 4101, Justice B.K. Rathi, the learned Single Judge
of the Allahabad High Court held as under:-
"8.......As such there are three stages of a case. The
first is under Section 204 Cr. P.C. at the time of issue
of process, the second is under Section 239 Cr. P.C.
before framing of the charge and the third is after
recording the entire evidence of the prosecution and
the defence. The question is whether the Magistrate is
required to scrutinise the evidence at all the three
stages and record reasons of his satisfaction. If this
view is taken, it will make speedy disposal a dream. In
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my opinion the consideration of merits and evidence at
all the three stages is different. At the stage of issue of
process under Section 204 Cr. P.C. detailed enquiry
regarding the merit and demerit of the cases is not
required. The fact that after investigation of the case,
the police has submitted the charge sheet, may be
considered as sufficient ground for proceeding at the
stage of issue of process under Section 204 Cr. PC.,
however subject to the condition that at this stage the
Magistrate should examine whether the complaint is
barred under any law at the stage of Section 204 Cr.
P.C. if the complaint is not found barred under any
law, the evidence is not required to be considered nor
the reasons are required to be recorded. At the stage of
charge under Section 239 or 240 Cr. P.C. the evidence
may be considered very briefly, though at that stage
also, the Magistrate is not required to meticulously
examine and to evaluate the evidence and to record
detailed reasons.
9. A bare reading of Sections 203 and 204 Cr.P.C.
shows that Section 203 Cr.P.C. requires that reasons
should be recorded for the dismissal of the complaint.
Contrary to it, there is no such' requirement under
Section 204 Cr.P.C. Therefore, the order for issue of
process in this case without recording reasons, does not
suffer from any illegality."(emphasis supplied) We
fully endorse the above view taken by the learned
Judge.
21. In para of Mehmood Ul Rehman, this Court has made a
fine distinction between taking cognizance based upon charge
sheet filed by the police under Section 190(1)(b) Cr.P.C. and a
private complaint under Section 190(1)(a) Cr.P.C. and held as
under:-
"21. Under Section 190(1)(b) CrPC, the Magistrate has
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the advantage of a police report and under Section 190
(1)( c) CrPC, he has the information or knowledge of
commission of an offence. But under Section 190(1)(a)
CrPC, he has only a complaint before him. The Code
hence specifies that "a complaint of facts which
constitute such offence". Therefore, if the complaint,
on the face of it, does not disclose the commission of
any offence, the Magistrate shall not take cognizance
under Section 190(1)(a) CrPC. The complaint is simply
to be rejected."
22. In summoning the accused, it is not necessary for the
Magistrate to examine the merits and demerits of the case and
whether the materials collected is adequate for supporting the
conviction. The court is not required to evaluate the evidence
and its merits. The standard to be adopted for summoning the
accused under Section 204 Cr.P.C. is not the same at the time
of framing the charge. For issuance of summons under
Section 204 Cr.P.C., the expression used is "there is sufficient
ground for proceeding....."; whereas for framing the charges,
the expression used in Sections 240 and 246 IPC is " there is
ground for presuming that the accused has committed an
offence..... ". At the stage of taking cognizance of the offence
based upon a police report and for issuance of summons under
Section 204 Cr.P.C., detailed enquiry regarding the merits and
demerits of the case is not required. The fact that after
investigation of the case, the police has filed charge sheet
along with the materials thereon may be considered as
sufficient ground for proceeding for issuance of summons
under Section 204 Cr.P.C."
69. To be fair to the Senior Counsel who has relied upon the
judgment passed in Pepsi Foods Ltd. (supra) and Krishna Lal Chawla
(supra) to point out that Sukhbir Kataria was being prosecuted with
malafide intention and, therefore, it was a frivolous litigation which be
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nipped in the bud and it was the responsibility of the lower judiciary as
such. In Krishna Lal Chawla (supra) there was repeated litigation
inter se the parties and on the same cause of action, which has led to the
same observations. Rather the Apex Court has held that the Magistrate is
not a silent spectator as such and if an offence as is made out and there
has been proper application of mind, he would be well justified in issuing
summons.
Discussion qua each set of case keeping in view the settled position of
law and the parmaters of jurisdiction defined above
70. Thus, keeping in view abovesaid principles in mind, this
Court shall proceed to examine whether the summoning order passed in
each case are justified in the facts or circumstances.
71. In CRM-M-53599-2018, the complaint pertains to a forged
ration card bearing No.4285832 regarding House No.1250 in which
accused No.1 to 7 names figured. The only averment qua the petitioner
who was accused No.27 is that he in his own handwriting and declaration
had filled up the columns in Form no.6, on the basis of which the
electoral identity cards were issued. Allegations were that 7 such like
cases are pending against him in the Courts at Gurgaon. It is not disputed
that a report was also received by the Magistrate from the DCP
(Headquarter) on 15.05.2014, in which it was mentioned that there is no
opinion of handwriting expert regarding the forgery as such which had
been mentioned in the complaint which is pertaining to filling up of form
no.6. In spite of that the summoning order was passed while noting the
said fact.
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72. A perusal of the summoning order dated 21.07.2014
(Annexure P-3), which has been reproduced above in paragraph no.9
would also go on to show that there is no sufficient material as such
which had been produced on record by the complainant in the Court
against the petitioner, apart from the solitary statement of CW-6 Sunita
that Form no.6 had been filled by the present petitioner. The said
statement has been noticed on account of the fact that she had also
worked as a Panch alongwith the petitioner accused, who was the
Sarpanch at that time. There is no other material which the Trial Court as
such had discussed and, therefore, there is no sufficient material which
had discussed and, therefore, this Court is not able to appreciate the
manner in which the summoning order was passed.
73. It is also to be noticed that at one stage the complaint was
sought to be withdrawn for reasons best known to the complainant when
it was fixed for arguments on the summoning point. However, the Court
had declined the same on the ground that it was related to non-bailable
and cognizable offences and had referred the matter for inquiry by the
police under Section 202 Cr.P.C on 11.03.2014. The said order reads as
under:-
"Present: Complainant in person with counsel.
Today the case was fixed for argument on
summoning point. Complainant has furnished an affidavit
with the prayer to withdraw the complaint. Since, the
complaint is related to non bailable and cognizable offences,
therefore, the same cannot be allowed to be withdrawn. I am
of the view that the inquiry by the police under 202 Cr.P.C.
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would help the court in appreciating the preliminary
evidence led by the complainant. The copy of the complaint
is send to DCP (HQ), Gurgaon for conducting inquiry under
Section 202 Cr.P.C. The report of DCP (HQ) is awaited for
18.04.2014.
(Ashok Kumar)
JMIC/GGN/11.03.2014"
74. Similarly, perusal of the report of the police dated
15.05.2014 would go on to show that the Investigating Officer had
submitted that the issue of forgery could not be commented upon without
examining the handwriting expert. No effort as such had been made by
the complainant also to do the said exercise. It is not disputed that Sunita
is the only witness, who stated she can recognise the signatures of the
petitioner as noticed above. She is none else but the President of the
Matdata Jagrook Manch, Gurgaon, which would be clear from the
complaint, which had been initially given to the police on 29.10.2012,
whereas the complainant is the General Secretary of the said Manch. It
has also come on record that she was Panch in the village of the petitioner
alongwith him and from the opposite camp. In such circumstances, being
from the opposite camp her statement should have been taken with a
pinch of salt.
75. In a similar kind of proceeding on an earlier occasion this
Court in CRM-M-39202-2018 'Sukhbir Kataria Vs. Om Parkash'
decided on 27.04.2021 had also held that in the absence of an
handwriting expert, the summoning could not be justified and it could not
be held that the petitioner had filled up the Form No.6. The benefits of
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observations passed in the said order would also, thus, be applicable to
the petitioner.
76. In the said case, it was noticed that the summoning of
Sukhbir Kataria on the basis of evidence as such of rival Member of the
Panchayat on the strength of photocopies of documents. The summoning
Court had come to the conclusion that the handwriting and signatures
read in comparison to the admitted signatures were rather of one and the
same person. It was, accordingly, noticed that in the absence of the
opinion of the expert evidence and even in the absence of originals of
form no.6, the summoning Court was not justified and the Magistrate
could not be a silent spectator at the time of recording of preliminary
evidence. Reliance was placed upon the judgments of the Apex Court 'V.
Sujatha Vs. State of Kerala and others' 1994 Suppl. (3) SCC 436,
wherein convictions had been set aside while noticing that the originals
had not been produced and the handwriting expert expressed his inability
to give any opinion on the photostat copy. Reliance had also placed been
upon the judgment passed in 'Budh Ram Vs. State of Hayrana', 2010
(2) RCR (Crl.) 352, wherein also conviction had been set aside in the
absence of the comparison of the thumb impressions of the vendors, on
the copies of the sale deeds, with the standard or specimen thumb
impressions of the original owners.
77. It is also to be noticed that solely on the statement of Sunita
the summoning had been done and she being a office bearer of the Manch
in which the complainant is Secretary and also belonging to the opposite
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camp being a Panch of the same village, her solitary statement would not
constitute sufficient material as such, merely because the petitioner has a
large number of cases pending against him on the same set of allegations.
It is relevant to note that this Court is interfering in that set of cases
where the petitioner cannot be directly connected with the other co-
accused and dismissing the petitions where the petitioner is related to the
other co-accused who are related to him in the form of his son, nephew,
brothers-in-law and personal assistants, since the scope of criminal
conspiracy would be wide enough to cover his involvement in that set of
cases. Nothing was shown to the Court by the counsel for the
complainant that the other co-accused as such are connected with the
petitioner and, therefore, on mere bald averments that he had filled out
the blank ration cards or form no.6 would not constitute prima facie any
sufficient material as such. Therefore, the summoning orders cannot be
justified in those set of cases.
78. Resultantly, this Court is of the opinion that the summoning
order as such needs to be revisited by the Magistrate by examining the
issue afresh as to whether the sufficient material is made out to summon
the accused petitioner and whether the material and statements recorded
would prima facie show that there was any offence of forgery committed
by the petitioner. Resultantly, the petition is allowed to the extent that
the summoning order dated 21.03.2014, the discharge order dated
07.04.2018 and the dismissal of the revision petition on 06.08.2018 suffer
from said infirmities, whereby this aspect was not noticed. Accordingly,
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the Magistrate shall scan the material before it and pass a fresh
summoning order qua petitioner Sukhbir Katria.
79. In CRM-M-54951-2018 the allegations are of the forgery
committed by Nitish the minor son of the petitioner himself, whereby he
had been shown as son of one Raj Kumar and got his vote made
containing his photograph. Similar allegations in the complaint are qua
accused no.9 and 10 namely Rajesh Rana and Devender Rana sons of
Haripal Rana, who are brothers-in-law of the petitioner, who himself had
arrayed as accused no.14. It is pertinent to mention that in the quashing
petition also there is no denial of the said factum of close relationship
inter se the parties and it has neither been averred that the said persons
arrayed as accused are not brother-in-laws of the petitioner. The other
accused are also stated to be personal assistants and personal secretaries
of the petitioner. Neither it has been pleaded that petitioner's son is not
Nitish and the fact that he was already major and having a separate vote.
80. Counsel for the complainant is, thus, well justified to submit
that the ambit of Section 120-B IPC is wide enough and in view of close
relationship inter se of minor son of the petitioner and his real brother-in-
law's being involved, this Court is of the opinion that the petitioner
cannot get any benefit that sufficient material had not been placed before
the Magistrate and that the summoning order was without any substance.
81. The accused is yet to lead the evidence at the pre-charge
evidence stage and therefore, the petitioner will get sufficient time as
such when the said witnesses are to be examined and therefore, it is not
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case to stifle the criminal prosecution at the preliminary stage and the
summoning order thus is not liable to be quashed. The petition is,
accordingly, dismissed.
82. In CRM-M-57177-2018 the allegations qua the petitioner
who is accused no.10 are that the ration card bearing no.657457 had been
prepared by him in his handwriting and the details of the family members
had also been in his own handwriting. The beneficiaries of the ration card
are accused no.5 to 8 i.e. one Inderjit and his family members. The
declaration on form no.6 and 8 was also stated to have been filled by him
on the basis of which fake votes had been prepared. The Magistrate had
not send the complaint under Section 156 (3) Cr.P.C., for registration of
the FIR nor any report under Section 202 Cr.P.C. was called for.
83. The summoning order which has been reproduced above
would also go on to show that apart from examining the statements of the
witnesses and relying upon Sunita's deposition that he had filled up the
form of Inderjit, there is no such other credible evidence or material on
record, which has been discussed. CW-5 Om Parkash only talks about a
blank ration card filled in the handwriting of the accused Sukhbir Kataria
and in the absence of any handwriting expert produced to substantiate the
same, the summoning order of the Magistrate as such does not contain
any reason as to what material there was on record, vide which the
petitioner had been summoned. Merely because some other accused as
such have got fake votes created would not be a ground as such to
summon the petitioner until a finding was recorded that he was
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responsible for the forgery on the ration card, which could only be done if
there was sufficient material. Merely because other accused have got
multiple votes, the petitioner cannot be held to be in conspiracy with
them. The role of Sunita had already been discussed in CRM-M-53599-
2018 and, therefore, merely on her statement the summoning cannot be
held to be justified. Accordingly, the petition is partly allowed by setting
aside the summoning order dated 16.12.2013 and liberty is given to the
Magistrate to re-examine the material on record and if any case is made
out pass a appropriate order thereafter.
84. In CRM-M-54463-2018 the allegations qua the petitioner are
of forgery in the ration card bearing No.406494 which is in the name of
accused no.1 and 2 who are mother and daughter. The Magistrate also
noticed that multiple votes had been prepared on the basis of forged and
illegal ration card and came to the conclusion that there was sufficient
material as such to proceed against the accused.
85. A perusal of the record would go on to show that the same
does not exist in record of the Food & Supplies Department and
information of the same had been sought for and the reply as such was
received there under the RTI Act, 2005 that the same is not available.
The persons mentioned in the ration card would show that one Rajinder
as such was the husband and father of the other two accused and the
electricity bill of one Rajinder Singh had been used for the purpose of
proof of residence. The material thus which had been placed on record
are the certified copies under the RTI Act and, therefore, it would not be
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said that there is no sufficient material before the Court on the basis of
which the summoning order had been passed. However, there is nothing
to show that the petitioner can be connected with the other accused. He
has only been roped in because of the statement of Sunita, the rivalry
with whom has already been noticed above in CRM-M-53599-2018 and
CRM-M-57177-2018
86. In such circumstances, once there was no sufficient material
showing that the ration card itself was forged by the petitioner except the
bald statement of Sunita, the Trial Court was not correct as such to pass
the summoning order against the petitioner. Therefore, it is apparent that
the Magistrate was not justified in summoning the petitioner in the
absence of any handwriting expert's opinion who had compared the
handwriting of the petitioner with the alleged entries made by him on the
ration card in question. Therefore, fault as such can be made out with the
summoning order. Accordingly, the present petition stands allowed. It
would be open to the Trial Court to scan the material before it and pass a
fresh order against the petitioner in case the Court feels the need.
87. In CRM-M-947-2019 the petitioners are accused No.7 to 10
and the allegations qua them are of making multiple votes and giving
false declaration in Form no.6/8. In the present case on 19.09.2013 the
complainant evidence had been recorded and a report had been called for
under Section 202 Cr.P.C. though the request for sending the matter for
investigation under Section 156 (3) Cr.P.C., had been declined. The
report under Section 202 Cr.P.C. was received by the Magistrate on
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02.12.2013. The statement of the Investigating Officer, Sub-Inspector
Giriraj had been recorded that the complete record had not been supplied
by the office of the Tehsildar Election Commission and accordingly,
notice had been issued to the concerned clerk. Relevant orders dated
19.09.2013 and 02.12.2013 read as under:-
"Present: Complainant in person.
Complaint received by way of assignment. It be
checked and registered. A request for sending the case to police
station under Section 156 (3) Cr.P.C. is made. No ground for
sending the complaint under Section 156 (3) Cr.P.C. is made out.
Therefore the request is declined.
One CW complainant Om Parkash in preliminary
evidence recorded. No other CW is present. At this stage, it is
necessary to send the matter to the SHO concerned for further
and proper investigation into the matter. Hence the case be sent
to SHO concerned. Report under section 202 Cr.P.C. be awaited
for 31.10.2013.
(Amberdeep Singh)
JMIC,Gurgaon. 19.09.2013"
XXXXXXXXXXXXXXXXXXXXX
"Present: Complainant in person.
Report under section 202 Cr.P.C. received.
However, SI Giriraj has appeared in person and stated that the
complete report is not submitted because Daya Chand Clerk
office of Tehsildar Election Commission has not supplied him
the requisite documents and also misbehaved with him.
Statement of SI Giriraj also recorded. Heard. Let show cause
notice to Dayanand Clerk office of Tehsildar Election
Commission Gurgaon be issued for 10.12.2013.
(Amberdeep Singh)
CJ (JD), Gurgaon. 2.12.2013"
88. It is pertinent to notice that the Sub-Inspector had also got a
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DDR lodged on 25.11.2013 on account of the interference in the
investigation. Eventually on 01.05.2014 the report was received. It is to
be noticed that petitioner no.3 Parmeshwari Devi who had been shown as
daughter of Bhim Singh is the sister of the petitioner Sukhbir Kataria.
She had been shown at Sr.no.295 and 852 as voter at two places in booth
no.133 and her description is at one place had been shown as wife of
Sahdev to hide her identity. Similarly, it is pointed out that Parmeshwari
Devi is also the real sister and other family members are brother-in-law
etc. and the Magistrate had already noticed that all are closely related
and, therefore, the allegations needs to be answered by the summoned
persons. The summoning order has already been reproduced above in
paragraph no.42.
89. In such circumstances, it would not lie in the mouth of the
counsel for the petitioner that only an offence is made under the
Representation of People Act and it would be barred by limitation. The
judgment passed in the case of Rajesh Joshi (supra) would not be
applicable in the facts and circumstances, as it was not a case where there
was forgery of documents and it was a case of votes at two places and in
such circumstances the petition was allowed by this Court and only the
offences under Section 17 and 31 of the Act were involved.
90. In the present case there are more serious allegations
regarding forgery of public documents and there are charges of
impersonating and regarding pasting of photographs and showing persons
under different identities and therefore, it would be a matter, which has to
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be gone into by the Trial Court whether the offences are made out or not
and the criminal prosecution cannot be stifled at the threshold. Thus,
once offence of forgery of public documents under IPC is prima facie
made out and offences are punishable upto 7 years, the bar of limitation
would not arise under Section 468 Cr.P.C. Resultantly, the present
petition is dismissed.
91. In CRM-M-21528-2019 the allegations against the
petitioners who are accused no.1 to 5, are of preparation of different
identity cards on the basis of fake documents. Sukhbir Kataria had
chosen not to challenge the said summoning order, which was also
against him. The accused persons are stated to be his personal secretaries
and other relatives. Ration card bearing No.602480 which has been
brought on record as Ex.CW3/F and Ex.CW2/A shows two different
addresses. It is Bimla Devi, who is the main beneficiary of the ration
card and her address is shown as House No.1845/3, Rajeev Nagar,
Gurgaon alongwith other family members, whereas in the other ration
bearing the same no.602480 the address is shown as 1845, 8 Biswa,
Gurgaon and the same person and the same family members photograph
is attached. Thus, it is apparent that in such circumstances the Court was
well justified in summoning the accused. Further issue which would
arise there is that the petition under Section 482 Cr.P.C. is filed, would be
a second petition, since the revision petition had already been dismissed
on 13.03.2019 on merits in the present case and, therefore, this petition
would not lie in the facts and circumstances as there is no such
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extraordinary circumstances to entertain it. Once there is a bar under
Cr.P.C. merely by titling the petition under Section 482 Cr.P.C., the bar
as such cannot be got over. Accordingly, the present petition stands
dismissed.
92. Regarding the FIR case i.e. CRR-2265-2019 this Court is of
the opinion that the revisional Court was not correct to come to the
conclusion that the provisions of IPC were not made out, specially
keeping in view the fact that Section 30 of the IPC defines valuable
securities, which is a wide term pertaining to a document whereby any
legal right is created or extended. The Constitution of India provides
elections to the Legislative Assembly which have to be held on the basis
of adult suffrage and every person who is a citizen of India and not less
than 18 years of age, he is entitled to be registered as a voter at any such
election.
93. The offences of cheating is defined under Section 415 IPC
and the dishonest inducement of a person by fraudulent intent or taking
the consent of any person and intentionally inducing him to do so or omit
to do anything which are causing damage or harm to the person would
amount to cheating.
94. Section 420 talks about valuable security and a person who
dishonestly induces the person deceived to deliver any property to any
other person or to make, alter or destroy the whole or any part of a
valuable security shall be punished. In such circumstances, the right to
exercise franchise as such also cannot be kept out of the ambit of
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valuable security which is given under Constitution of India and if a
wrong inducement has been made, prima facie provisions of IPC would
come into play and the view taken by the revisional Court does not keep
these factors in mind and cannot be upheld or stated to be justified
95. Similarly, Section 467 IPC talks about forgery of a valuable
security and Section 471 IPC talks about fraudulently or dishonestly use
as genuine, a document which a person knows or has a reason to believe
to be a forged document or electronic record and if there is knowledge a
person has forged such documents and uses the same, the offences would
be made out. The provisions of Section 120-B are of wide ambit on
criminal conspiracy. The provision provides as such that if there is no
express provision made in the Code for the punishment of such a
conspiracy the party shall be punished in the same manner as if he had
abetted such an offence. Therefore, it was rightly not held that offences
under the provisions of IPC prima facie were not made out in the facts
and circumstances. The order cannot be sustained as there is prima facie
sufficient material on the file of the Trial Court in the FIR case.
96. It is also to be noticed that the record would go on to show
that the original Form No.6 was appended with the challan and, therefore,
it is for the Trial Court to make a inquiry whether the original form no.6
is available on the record and since during the course of investigation the
Investigating Officer had seized the same.
97. If one is to look at the overall picture that serious allegations
regarding creating of false votes by the petitioner by involving the
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persons who are closely known to him including his son, his sister-in-law
his Personal Secretaries and other close persons known to him. In such
circumstances, this Court has also to be keep in mind the fact that the
extra-ordinary jurisdiction of this Court is not meant to be exercised in
favour of such offenders and is only to be done in cases where
exceptional circumstances are made out.
98. The Apex Court recently in the case of 'Lakshman Sikngh
Vs. State of Bihar (now Jharkhand)', Law Finder Doc Id # 1858333,
while deciding the appeals against convictions pertaining to booth
capturing and casting of bogus votes has held that the said offences are to
be dealt with iron hand as it ultimately affects the rule of law and
democracy and dilutes the right to free and fair election and cannot be
permitted. Relevant portion of the said judgment reads as under:-
"10. In view of the above, we are of the firm view that the
appellants are rightly convicted under Sections 323 and 147 IPC
and sentenced to undergo six months simple imprisonment only
for the said offences. Before parting, we may observe that
though in the present case it has been established and proved
that all the accused were the members of the unlawful assembly
in prosecution of the common object, namely, "to snatch the
voters list and to cast bogus voting" and have been convicted
for the offence under Section 147 IPC, the trial Court has
imposed the sentence of only six months simple imprisonment.
In the case of People"s Union for Civil Liberties (supra), it is
observed by this Court that freedom of voting is a part of the
freedom of expression. It is further observed that secrecy of
casting vote is necessary for strengthening democracy. It is
further observed that in direct elections of Lok Sabha or State
Legislature, maintenance of secrecy is a must and is insisted
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upon all over the world in democracies where direct elections
are involved to ensure that a voter casts his vote without any
fear or being victimised if his vote is disclosed. It is further
observed that democracy and free elections are a part of the
basic structure of the Constitution. It is also further observed
that the election is a mechanism which ultimately represents the
will of the people. The essence of the electoral system should be
to ensure freedom of voters to exercise their free choice.
Therefore, any attempt of booth capturing and/or bogus voting
should be dealt with iron hands because it ultimately affects the
rule of law and democracy. Nobody can be permitted to dilute
the right to free and fair election. However, as the State has not
preferred any appeal against imposing of only six months
simple imprisonment, we rest the matter there."
99. As also noticed above there are various stages in the
proceedings which the petitioner will have where he can seek the valid
discharge or dropping of the proceedings on account of the evidence
which comes on record. It is not for this Court to examine the evidence
and its admissibility at this stage, as prima facie sufficient material has
been placed on record by the complainant in complaint cases and
similarly in the investigation material has come on record to the extent
that there was a valid Middle Class Certificate having a date of birth
which did not entitle the co-accused Pardeep to obtain a Voter ID and
caste his vote.
100. The judgment in the case of Suresh Budharmal Kalani
(supra) relied upon thus would not be applicable in the facts and
circumstances, since it was a case under the Terrorists and Disruptive
Activities (P) Act, 1987. The petitioner in that case was stated to have
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abetted the commission of murder of a rival gang member, wherein he has
been implicated on the basis of confessional statement made by one co-
accused who had been discharged from the case. Resultantly, it was held
that the confessional statement as such of the co-accused were not
admissible and the charge framed was set aside and the petitioner was
discharged.
101. In the present case, where there is sufficient documentary
evidence in the form of tampering having been done on the certificate of
the co-accused and it is not only the statement of the co-accused which is
in the form of incriminating material and, therefore, the said judgment is
not applicable in the present facts and circumstances, once there is
sufficient material on record collected by the investigating officer.
102. Thus, statutory power under Section 482 Cr.P.C., is only to
be exercised in the rarest of rare case and where exceptional
circumstances are made out as held in Kurukshetra University &
another Vs. State of Haryana & another (1977) 4 SCC 451 and in
Janata Dal Vs. H.S.Chowdhary 1992 (4) SCC 305, wherein it was held
that legitimate prosecutions cannot be stifled by exercising the inherent
powers under Section 482 Cr.P.C.
103. Thus, once there is sufficient alternative and efficacious
remedy available to the petitioners during the trial, as noticed above, it
would, thus, be not appropriate for this Court to exercise its extraordinary
jurisdiction to quash the summoning orders under Section 482 Cr.P.C.
104. Resultantly, the present petitions are disposed of as under:-
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(i) CRM-M-53599-2018, CRM-M-57177-2018 and
CRM-M-54463-2018 are allowed and the summoning
orders dated 21.03.2014, 16.12.2013, 30.11.2013 and the
discharge order dated 07.04.2018 and the dismissal of
the revision petition on 06.08.2018 are set set aide. The
Trial Court shall scan the material before it and pass a
fresh summoning order qua petitioner Sukhbir Kataria, if
so required.
(ii) CRM-M-54951-2018, CRM-M-947-2019, CRM-M-
21528-2019 stand dismissed.
(iii) However, CRR-2265-2019 filed by complainant Om
Parkash is partly allowed by setting aside the order of
the Additional Sessions Judge and directing the
Magistrate to re-examine the material on record and pass
fresh orders on framing of charge qua Sukhbir Kataria
by taking into account whether there is sufficient
material as such to proceed against under the provisions
of IPC, since the charge under IPC had not been
challenged by the other co-accused and they are facing
trial under the same provisions.
(G.S. SANDHAWALIA)
October 14, 2021 JUDGE
Naveen
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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